Common use of Appeal Process for Misexpenditure Clause in Contracts

Appeal Process for Misexpenditure. If CDDP notifies ODHS that it wants to engage in an appeal process with respect to a noticed Misexpenditure, the parties shall comply with the following procedures, as applicable. (1) Appeal from ODHS-Identified Misexpenditure. If ODHS’ notice of Misexpenditure is based on a Misexpenditure solely of the type described in Section 34 b. or c. of Exhibit A “Definitions”, CDDP and ODHS shall engage in the process described in this subsection to resolve a dispute regarding the noticed Misexpenditure. (a) CDDP and ODHS shall engage in non-binding discussions to give CDDP an opportunity to present reasons why it claims that there is no Misexpenditure or that the amount of the Misexpenditure is different than the amount identified by ODHS; and to give ODHS the opportunity to reconsider its notice of recovery. (b) CDDP and ODHS may negotiate an appropriate apportionment of responsibility for the recovery of a Misexpenditure. At CDDP’s request, ODHS will meet and negotiate with the CDDP in good faith concerning appropriate apportionment of responsibility for recovery of a Misexpenditure. In determining an appropriate apportionment of responsibility, CDDP and ODHS may consider any relevant factors. An example of a relevant factor is the extent to which either party contributed to an interpretation of a statute, regulation or rule prior to the expenditure that was officially reinterpreted after the expenditure. (c) If ODHS and CDDP reach agreement on an amount owed to ODHS, CDDP shall, promptly repay that amount to ODHS by issuing payment to ODHS or direct ODHS to withhold future payments pursuant to subsection 7 d. below. (d) If ODHS and CDDP continue to disagree as to whether there has been a Misexpenditure or as to the amount owed, the parties may agree to further appropriate dispute resolution processes, including, subject to Department of Justice and CDDP Counsel approval, binding arbitration. (2) Appeal from Federal-Identified Misexpenditure. (a) If ODHS’ notice of Misexpenditure is based on a Misexpenditure of the type described in Section 34 a. of Exhibit A “Definitions” and the relevant federal agency provides a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds, and if the disallowance is not based on a federal or state court judgment founded in allegations of Medicaid Fraud or abuse, then CDDP may, prior to 30 calendar days prior to the applicable federal appeals deadline, request that ODHS appeal the determination of improper use, notice of disallowance, or other federal identification of improper use of funds, in accordance with the process established or adopted by the federal agency. (b) If CDDP so requests that ODHS appeal the determination of improper use of Federal Funds, federal notice of disallowance, or other federal identification of improper use of funds, the amount in controversy shall, at the option of CDDP, be retained by CDDP or returned to ODHS pending the final federal decision resulting from the initial appeal. (c) If CDDP does request, prior to the deadline set forth in (2) (a) above, that ODHS appeal, ODHS shall appeal the determination of improper use, notice of disallowance or other federal identification of improper use of funds in accordance with the established process and shall pursue the appeal until a decision is issued by the Departmental Grant Appeals Board of the Department of Health and Human Services (the “Grant Appeals Board”) pursuant to the process for appeal set forth in 45 C.F.R. Subtitle A, Part 16, or an equivalent decision is issued under the appeal process established or adopted by the federal agency. CDDP and ODHS shall cooperate with each other in pursuing the appeal. (d) If the Grant Appeals Board or its equivalent denies the appeal, then either CDDP, ODHS, or both may, in their discretion, pursue further appeals. Regardless of any further appeals, within 90 calendar days of the date the federal decision resulting from the initial appeal is final, CDDP shall repay to ODHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by issuing payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. To the extent that CDDP retained any of the amounts in controversy while the appeal was pending, CDDP shall pay to ODHS the interest, if any, charged by the federal government on such amount. (e) If the relevant federal agency does not provide a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds or CDDP does not request that ODHS pursue an appeal 30 calendar days prior to the applicable federal appeals deadline, and if ODHS does not appeal, then within 90 calendar days of the date the federal determination of improper use of Federal Funds, the federal notice of disallowance, or other federal identification of improper use of funds is final, CDDP shall repay to ODHS the amount of the noticed Misexpenditure by issuing a payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. (f) If CDDP does not request that ODHS pursue an appeal of the determination of improper use of Federal Funds, the notice of disallowance, or other federal identification of improper use of funds, prior to 30 calendar days prior to the applicable federal appeals deadline, but ODHS nevertheless appeals, CDDP shall repay to ODHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal), within 90 calendar days of the date the federal decision resulting from the appeal is final, by issuing payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. (g) If the Misexpenditure was expressly authorized by a ODHS rule or a ODHS writing that applied when the expenditure was made, but was prohibited by federal statutes or regulations that applied when the expenditure was made, CDDP will not be responsible for repaying the amount of the Misexpenditure to ODHS, provided that: i. Where post-expenditure official reinterpretation of federal statutes or regulations results in a Misexpenditure, CDDP and ODHS will meet and negotiate in good faith an appropriate apportionment of responsibility between them for repayment of the Misexpenditure. ii. For purposes of this section, a ODHS writing must interpret this Agreement or a ODHS rule and be signed by the Director of ODHS or by one of the following ODHS officers concerning DD Services: Director of the Office of Developmental Disabilities Services; Deputy Director of the Office of Developmental Disabilities Services; Chief Operating Officer of the Office of Developmental Disabilities Services. ODHS shall designate alternate officers in the event the offices designated in the previous sentence are abolished. Upon CDDP request, ODHS shall notify CDDP of the names of individual officers with the above titles. ODHS shall send XXXX writings described in this paragraph to CDDP by mail and e-mail and to CDDP’s directors by e- mail. iii. The ODHS writing must be in response to a request from the CDDP for expenditure authorization, or a statement intended to provide official guidance to the CDDP or counties generally, for making expenditures under this Agreement. The ODHS writing must not be contrary to this Agreement or contrary to law or other applicable authority that is clearly established at the time of the writing. iv. If the ODHS writing is in response to a request from CDDP for expenditure authorization, the request must be in writing and signed by the director of a CDDP department with authority to make such a request or by CDDP Counsel. It must identify the supporting data, provisions of this Agreement and provisions of applicable law relevant to determining if the expenditure should be authorized. v. A ODHS writing expires on the date stated in the writing, or if no expiration date is stated, upon expiration of this Agreement. An expired ODHS writing continues to apply to CDDP expenditures that were made in compliance with the writing and during the term of the writing. vi. ODHS may revoke or revise a ODHS writing at any time if it determines in its sole discretion that the writing allowed expenditure in violation of this Agreement or law or any other applicable authority. However, ODHS is not responsible for a Misexpenditure that was based on a ODHS writing that was effective at the time of the Misexpenditure. vii. The ODHS rule or the ODHS writing does not authorize an expenditure that this Agreement prohibits.

Appeal Process for Misexpenditure. If CDDP notifies ODHS that it wants to engage in an appeal process with respect to a noticed Misexpenditure, the parties shall comply with the following procedures, as applicable. (1) Appeal from ODHS-Identified Misexpenditure. If ODHS’ notice of Misexpenditure is based on a Misexpenditure solely of the type described in Section 34 b. or c. of Exhibit A “Definitions”, CDDP and ODHS shall engage in the process described in this subsection to resolve a dispute regarding the noticed Misexpenditure. (a) CDDP and ODHS shall engage in non-binding discussions to give CDDP an opportunity to present reasons why it claims that there is no Misexpenditure or that the amount of the Misexpenditure is different than the amount identified by ODHS; and to give ODHS the opportunity to reconsider its notice of recovery. (b) CDDP and ODHS may negotiate an appropriate apportionment of responsibility for the recovery of a Misexpenditure. At CDDP’s request, ODHS will meet and negotiate with the CDDP in good faith concerning appropriate apportionment of responsibility for recovery of a Misexpenditure. In determining an appropriate apportionment of responsibility, CDDP and ODHS may consider any relevant factors. An example of a relevant factor is the extent to which either party contributed to an interpretation of a statute, regulation or rule prior to the expenditure that was officially reinterpreted after the expenditure. (c) If ODHS and CDDP reach agreement on an amount owed to ODHS, CDDP shall, promptly repay that amount to ODHS by issuing payment to ODHS or direct ODHS to withhold future payments pursuant to subsection 7 d. below. (d) If ODHS and CDDP continue to disagree as to whether there has been a Misexpenditure or as to the amount owed, the parties may agree to further appropriate dispute resolution processes, including, subject to Department of Justice and CDDP Counsel approval, binding arbitration. (2) Appeal from Federal-Identified Misexpenditure. (a) If ODHS’ notice of Misexpenditure is based on a Misexpenditure of the type described in Section 34 a. of Exhibit A “Definitions” and the relevant federal agency provides a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds, and if the disallowance is not based on a federal or state court judgment founded in allegations of Medicaid Fraud or abuse, then CDDP may, prior to 30 calendar days prior to the applicable federal appeals deadline, request that ODHS appeal the determination of improper use, notice of disallowance, or other federal identification of improper use of funds, in accordance with the process established or adopted by the federal agency. (b) If CDDP so requests that ODHS appeal the determination of improper use of Federal Funds, federal notice of disallowance, or other federal identification of improper use of funds, the amount in controversy shall, at the option of CDDP, be retained by CDDP or returned to ODHS pending the final federal decision resulting from the initial appeal. (c) If CDDP does request, prior to the deadline set forth in (2) (a) above, that ODHS appeal, ODHS shall appeal the determination of improper use, notice of disallowance or other federal identification of improper use of funds in accordance with the established process and shall pursue the appeal until a decision is issued by the Departmental Grant Appeals Board of the Department of Health and Human Services (the “Grant Appeals Board”) pursuant to the process for appeal set forth in 45 C.F.R. Subtitle A, Part 16, or an equivalent decision is issued under the appeal process established or adopted by the federal agency. CDDP and ODHS shall cooperate with each other in pursuing the appeal. (d) If the Grant Appeals Board or its equivalent denies the appeal, then either CDDP, ODHS, or both may, in their discretion, pursue further appeals. Regardless of any further appeals, within 90 calendar days of the date the federal decision resulting from the initial appeal is final, CDDP shall repay to ODHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by issuing payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. To the extent that CDDP retained any of the amounts in controversy while the appeal was pending, CDDP shall pay to ODHS the interest, if any, charged by the federal government on such amount. (e) If the relevant federal agency does not provide a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds or CDDP does not request that ODHS pursue an appeal 30 calendar days prior to the applicable federal appeals deadline, and if ODHS does not appeal, then within 90 calendar days of the date the federal determination of improper use of Federal Funds, the federal notice of disallowance, or other federal identification of improper use of funds is final, CDDP shall repay to ODHS the amount of the noticed Misexpenditure by issuing a payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. (f) If CDDP does not request that ODHS pursue an appeal of the determination of improper use of Federal Funds, the notice of disallowance, or other federal identification of improper use of funds, prior to 30 calendar days prior to the applicable federal appeals deadline, but ODHS nevertheless appeals, CDDP shall repay to ODHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal), within 90 calendar days of the date the federal decision resulting from the appeal is final, by issuing payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. (g) If the Misexpenditure was expressly authorized by a ODHS rule or a ODHS writing that applied when the expenditure was made, but was prohibited by federal statutes or regulations that applied when the expenditure was made, CDDP will not be responsible for repaying the amount of the Misexpenditure to ODHS, provided that: i. Where post-expenditure official reinterpretation of federal statutes or regulations results in a Misexpenditure, CDDP and ODHS will meet and negotiate in good faith an appropriate apportionment of responsibility between them for repayment of the Misexpenditure. ii. For purposes of this section, a ODHS writing must interpret this Agreement or a ODHS rule and be signed by the Director of ODHS or by one of the following ODHS officers concerning DD Services: Director of the Office of Developmental Disabilities Services; Deputy Director of the Office of Developmental Disabilities Services; Chief Operating Officer of the Office of Developmental Disabilities Services. ODHS shall designate alternate officers in the event the offices designated in the previous sentence are abolished. Upon CDDP request, ODHS shall notify CDDP of the names of individual officers with the above titles. ODHS shall send XXXX ODHS writings described in this paragraph to CDDP by mail and e-mail and to CDDP’s directors by e- mail. iii. The ODHS writing must be in response to a request from the CDDP for expenditure authorization, or a statement intended to provide official guidance to the CDDP or counties generally, for making expenditures under this Agreement. The ODHS writing must not be contrary to this Agreement or contrary to law or other applicable authority that is clearly established at the time of the writing. iv. If the ODHS writing is in response to a request from CDDP for expenditure authorization, the request must be in writing and signed by the director of a CDDP department with authority to make such a request or by CDDP Counsel. It must identify the supporting data, provisions of this Agreement and provisions of applicable law relevant to determining if the expenditure should be authorized. v. A ODHS writing expires on the date stated in the writing, or if no expiration date is stated, upon expiration of this Agreement. An expired ODHS writing continues to apply to CDDP expenditures that were made in compliance with the writing and during the term of the writing. vi. ODHS may revoke or revise a ODHS writing at any time if it determines in its sole discretion that the writing allowed expenditure in violation of this Agreement or law or any other applicable authority. However, ODHS is not responsible for a Misexpenditure that was based on a ODHS writing that was effective at the time of the Misexpenditure. vii. The ODHS rule or the ODHS writing does not authorize an expenditure that this Agreement prohibits.

Appeal Process for Misexpenditure. If CDDP County notifies ODHS DHS that it wants to engage in an appeal process with respect to a noticed Misexpenditure, the parties shall comply with the following procedures, as applicable. (1) Appeal from ODHSDHS-Identified Misexpenditure. If ODHSDHS’ notice of Misexpenditure is based on a Misexpenditure solely of the type described in Section 34 40 b. or c. of Exhibit A “Definitions”, CDDP County and ODHS DHS shall engage in the process described in this subsection to resolve a dispute regarding the noticed Misexpenditure. (a) CDDP County and ODHS DHS shall engage in non-binding discussions to give CDDP County an opportunity to present reasons why it claims that there is no Misexpenditure or that the amount of the Misexpenditure is different than the amount identified by ODHSDHS; and to give ODHS DHS the opportunity to reconsider its notice of recovery. (b) CDDP County and ODHS DHS may negotiate an appropriate apportionment of responsibility for the recovery of a Misexpenditure. At CDDP’s County request, ODHS DHS will meet and negotiate with the CDDP County in good faith concerning appropriate apportionment of responsibility for recovery of a Misexpenditure. In determining an appropriate apportionment of responsibility, CDDP County and ODHS DHS may consider any relevant factors. An example of a relevant factor is the extent to which either party contributed to an interpretation of a statute, regulation or rule prior to the expenditure that was officially reinterpreted after the expenditure. (c) If ODHS DHS and CDDP County reach agreement on an amount owed to ODHSDHS, CDDP County shall, promptly repay that amount to ODHS DHS by issuing payment to ODHS DHS or direct ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. (d) If ODHS DHS and CDDP County continue to disagree as to whether there has been a Misexpenditure or as to the amount owed, the parties may agree to further appropriate dispute resolution processes, including, subject to Department of Justice and CDDP County Counsel approval, binding arbitration. (2) Appeal from Federal-Identified Misexpenditure. (a) If ODHSDHS’ notice of Misexpenditure is based on a Misexpenditure of the type described in Section 34 40. a. of Exhibit A “Definitions” Definitions and the relevant federal agency provides a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds, and if the disallowance is not based on a federal or state court judgment founded in allegations of Medicaid Fraud or abuse, then CDDP County may, prior to 30 calendar days prior to the applicable federal appeals deadline, request that ODHS DHS appeal the determination of improper use, notice of disallowance, or other federal identification of improper use of funds, in accordance with the process established or adopted by the federal agency. (b) If CDDP County so requests that ODHS DHS appeal the determination of improper use of Federal Funds, federal notice of disallowance, or other federal identification of improper use of funds, the amount in controversy shall, at the option of CDDPCounty, be retained by CDDP County or returned to ODHS DHS pending the final federal decision resulting from the initial appeal. (c) If CDDP County does request, prior to the deadline set forth in (2) (a) above, that ODHS DHS appeal, ODHS DHS shall appeal the determination of improper use, notice of disallowance or other federal identification of improper use of funds in accordance with the established process and shall pursue the appeal until a decision is issued by the Departmental Grant Appeals Board of the Department of Health and Human Services (the “Grant Appeals Board”) pursuant to the process for appeal set forth in 45 C.F.R. Subtitle A, Part 16, or an equivalent decision is issued under the appeal process established or adopted by the federal agency. CDDP County and ODHS DHS shall cooperate with each other in pursuing the appeal. (d) If the Grant Appeals Board or its equivalent denies the appeal, then either CDDPCounty, ODHSDHS, or both may, in their discretion, pursue further appeals. Regardless of any further appeals, within 90 calendar days of the date the federal decision resulting from the initial appeal is final, CDDP County shall repay to ODHS DHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by issuing payment to ODHS DHS or by directing ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. To the extent that CDDP County retained any of the amounts in controversy while the appeal was pending, CDDP County shall pay to ODHS DHS the interest, if any, charged by the federal government on such amount. (e) If the relevant federal agency does not provide a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds or CDDP County does not request that ODHS DHS pursue an appeal 30 calendar days prior to the applicable federal appeals deadline, and if ODHS DHS does not appeal, then within 90 calendar days of the date the federal determination of improper use of Federal Funds, the federal notice of disallowance, or other federal identification of improper use of funds is final, CDDP County shall repay to ODHS DHS the amount of the noticed Misexpenditure by issuing a payment to ODHS DHS or by directing ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. (f) If CDDP County does not request that ODHS DHS pursue an appeal of the determination of improper use of Federal Funds, the notice of disallowance, or other federal identification of improper use of funds, prior to 30 calendar days prior to the applicable federal appeals deadline, but ODHS DHS nevertheless appeals, CDDP County shall repay to ODHS DHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal), within 90 calendar days of the date the federal decision resulting from the appeal is final, by issuing payment to ODHS DHS or by directing ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. (g) If the Misexpenditure was expressly authorized by a ODHS DHS rule or a ODHS DHS writing that applied when the expenditure was made, but was prohibited by federal statutes or regulations that applied when the expenditure was made, CDDP County will not be responsible for repaying the amount of the Misexpenditure to ODHSDHS, provided that: i. Where post-expenditure official reinterpretation of federal statutes or regulations results in a Misexpenditure, CDDP County and ODHS DHS will meet and negotiate in good faith an appropriate apportionment of responsibility between them for repayment of the Misexpenditure. ii. For purposes of this section, a ODHS DHS writing must interpret this Agreement or a ODHS DHS rule and be signed by the Director of ODHS DHS or by one of the following ODHS DHS officers concerning DD Services: Director of the Office of Developmental Disabilities Disability Services; Deputy Director of the Office of Developmental Disabilities Disability Services; Chief Operating Officer of the Office of Developmental Disabilities Disability Services. ODHS DHS shall designate alternate officers in the event the offices designated in the previous sentence are abolished. Upon CDDP County request, ODHS DHS shall notify CDDP County of the names of individual officers with the above titles. ODHS DHS shall send XXXX DHS writings described in this paragraph to CDDP County by mail and e-mail and to CDDPCounty’s CDDP directors by e- e-mail. iii. The ODHS DHS writing must be in response to a request from the CDDP County for expenditure authorization, or a statement intended to provide official guidance to the CDDP County or counties generally, for making expenditures under this Agreement. The ODHS DHS writing must not be contrary to this Agreement or contrary to law or other applicable authority that is clearly established at the time of the writing. iv. If the ODHS DHS writing is in response to a request from CDDP County for expenditure authorization, the request must be in writing and signed by the director of a CDDP County department with authority to make such a request or by CDDP County Counsel. It must identify the supporting data, provisions of this Agreement and provisions of applicable law relevant to determining if the expenditure should be authorized. v. A ODHS DHS writing expires on the date stated in the writing, or if no expiration date is stated, upon expiration of this Agreement. An expired ODHS DHS writing continues to apply to CDDP County expenditures that were made in compliance with the writing and during the term of the writing. vi. ODHS DHS may revoke or revise a ODHS DHS writing at any time if it determines in its sole discretion that the writing allowed expenditure expenditures in violation of this Agreement or law or any other applicable authority. However, ODHS County is not responsible for a Misexpenditure that was based on a ODHS DHS writing that was effective at the time of the Misexpenditure. vii. The ODHS DHS rule or the ODHS DHS writing does not authorize an expenditure that this Agreement prohibits.

Appeal Process for Misexpenditure. If CDDP notifies ODHS that it wants to engage in an appeal process with respect to a noticed Misexpenditure, the parties shall comply with the following procedures, as applicable. (1) Appeal from ODHS-Identified Misexpenditure. If ODHS’ notice of Misexpenditure is based on a Misexpenditure solely of the type described in Section 34 35 b. or c. of Exhibit A “Definitions”, CDDP and ODHS shall engage in the process described in this subsection to resolve a dispute regarding the noticed Misexpenditure. (a) CDDP and ODHS shall engage in non-binding discussions to give CDDP an opportunity to present reasons why it claims that there is no Misexpenditure or that the amount of the Misexpenditure is different than the amount identified by ODHS; and to give ODHS the opportunity to reconsider its notice of recovery. (b) CDDP and ODHS may negotiate an appropriate apportionment of responsibility for the recovery of a Misexpenditure. At CDDP’s request, ODHS will meet and negotiate with the CDDP in good faith concerning appropriate apportionment of responsibility for recovery of a Misexpenditure. In determining an appropriate apportionment of responsibility, CDDP and ODHS may consider any relevant factors. An example of a relevant factor is the extent to which either party contributed to an interpretation of a statute, regulation or rule prior to the expenditure that was officially reinterpreted after the expenditure. (c) If ODHS and CDDP reach agreement on an amount owed to ODHS, CDDP shall, promptly repay that amount to ODHS by issuing payment to ODHS or direct ODHS to withhold future payments pursuant to subsection 7 d. below. (d) If ODHS and CDDP continue to disagree as to whether there has been a Misexpenditure or as to the amount owed, the parties may agree to further appropriate dispute resolution processes, including, subject to Department of Justice and CDDP Counsel approval, binding arbitration. (2) Appeal from Federal-Identified Misexpenditure. (a) If ODHS’ notice of Misexpenditure is based on a Misexpenditure of the type described in Section 34 35 a. of Exhibit A “Definitions” and the relevant federal agency provides a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds, and if the disallowance is not based on a federal or state court judgment founded in allegations of Medicaid Fraud or abuse, then CDDP may, prior to 30 calendar days prior to the applicable federal appeals deadline, request that ODHS appeal the determination of improper use, notice of disallowance, or other federal identification of improper use of funds, in accordance with the process established or adopted by the federal agency. (b) If CDDP so requests that ODHS appeal the determination of improper use of Federal Funds, federal notice of disallowance, or other federal identification of improper use of funds, the amount in controversy shall, at the option of CDDP, be retained by CDDP or returned to ODHS pending the final federal decision resulting from the initial appeal. (c) If CDDP does request, prior to the deadline set forth in (2) (a) above, that ODHS appeal, ODHS shall appeal the determination of improper use, notice of disallowance or other federal identification of improper use of funds in accordance with the established process and shall pursue the appeal until a decision is issued by the Departmental Grant Appeals Board of the Department of Health and Human Services (the “Grant Appeals Board”) pursuant to the process for appeal set forth in 45 C.F.R. Subtitle A, Part 16, or an equivalent decision is issued under the appeal process established or adopted by the federal agency. CDDP and ODHS shall cooperate with each other in pursuing the appeal. (d) If the Grant Appeals Board or its equivalent denies the appeal, then either CDDP, ODHS, or both may, in their discretion, pursue further appeals. Regardless of any further appeals, within 90 calendar days of the date the federal decision resulting from the initial appeal is final, CDDP shall repay to ODHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by issuing payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. To the extent that CDDP retained any of the amounts in controversy while the appeal was pending, CDDP shall pay to ODHS the interest, if any, charged by the federal government on such amount. (e) If the relevant federal agency does not provide a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds or CDDP does not request that ODHS pursue an appeal 30 calendar days prior to the applicable federal appeals deadline, and if ODHS does not appeal, then within 90 calendar days of the date the federal determination of improper use of Federal Funds, the federal notice of disallowance, or other federal identification of improper use of funds is final, CDDP shall repay to ODHS the amount of the noticed Misexpenditure by issuing a payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. (f) If CDDP does not request that ODHS pursue an appeal of the determination of improper use of Federal Funds, the notice of disallowance, or other federal identification of improper use of funds, prior to 30 calendar days prior to the applicable federal appeals deadline, but ODHS nevertheless appeals, CDDP shall repay to ODHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal), within 90 calendar days of the date the federal decision resulting from the appeal is final, by issuing payment to ODHS or by directing ODHS to withhold future payments pursuant to subsection 7 d. below. (g) If the Misexpenditure was expressly authorized by a ODHS rule or a ODHS writing that applied when the expenditure was made, but was prohibited by federal statutes or regulations that applied when the expenditure was made, CDDP will not be responsible for repaying the amount of the Misexpenditure to ODHS, provided that: i. Where post-expenditure official reinterpretation of federal statutes or regulations results in a Misexpenditure, CDDP and ODHS will meet and negotiate in good faith an appropriate apportionment of responsibility between them for repayment of the Misexpenditure. ii. For purposes of this section, a ODHS writing must interpret this Agreement or a ODHS rule and be signed by the Director of ODHS or by one of the following ODHS officers concerning DD Services: Director of the Office of Developmental Disabilities Services; Deputy Director of the Office of Developmental Disabilities Services; Chief Operating Officer of the Office of Developmental Disabilities Services. ODHS shall designate alternate officers in the event the offices designated in the previous sentence are abolished. Upon CDDP request, ODHS shall notify CDDP of the names of individual officers with the above titles. ODHS shall send XXXX ODHS writings described in this paragraph to CDDP by mail and e-mail and to CDDP’s directors by e- mail. iii. The ODHS writing must be in response to a request from the CDDP for expenditure authorization, or a statement intended to provide official guidance to the CDDP or counties generally, for making expenditures under this Agreement. The ODHS writing must not be contrary to this Agreement or contrary to law or other applicable authority that is clearly established at the time of the writing. iv. If the ODHS writing is in response to a request from CDDP for expenditure authorization, the request must be in writing and signed by the director of a CDDP department with authority to make such a request or by CDDP Counsel. It must identify the supporting data, provisions of this Agreement and provisions of applicable law relevant to determining if the expenditure should be authorized. v. A ODHS writing expires on the date stated in the writing, or if no expiration date is stated, upon expiration of this Agreement. An expired ODHS writing continues to apply to CDDP expenditures that were made in compliance with the writing and during the term of the writing. vi. ODHS may revoke or revise a ODHS writing at any time if it determines in its sole discretion that the writing allowed expenditure in violation of this Agreement or law or any other applicable authority. However, ODHS is not responsible for a Misexpenditure that was based on a ODHS writing that was effective at the time of the Misexpenditure. vii. The ODHS rule or the ODHS writing does not authorize an expenditure that this Agreement prohibits.

Appeal Process for Misexpenditure. If CDDP LPHA notifies ODHS OHA that it wants wishes to engage in an appeal process with respect to a noticed Misexpenditure, the parties shall comply with the following procedures, as applicable. (1) : Appeal from ODHSOHA-Identified Misexpenditure. If ODHS’ OHA’s notice of Misexpenditure is based on a Misexpenditure solely of the type described in Section 34 b. Sections 15.b. or c. of Exhibit A “Definitions”A, CDDP LPHA and ODHS OHA shall engage in the process described in this subsection to resolve a dispute regarding the noticed Misexpenditure. (a) CDDP . First, LPHA and ODHS OHA shall engage in non-binding discussions to give CDDP LPHA an opportunity to present reasons why it claims believes that there is is, in fact, no Misexpenditure or that the amount of the Misexpenditure is different than the amount identified by ODHS; OHA, and to give ODHS OHA the opportunity to reconsider its notice of recovery. (b) CDDP notice. LPHA and ODHS OHA may negotiate an appropriate apportionment of responsibility for the recovery repayment of a Misexpenditure. At CDDP’s LPHA request, ODHS OHA will meet and negotiate with the CDDP LPHA in good faith concerning appropriate apportionment of responsibility for recovery repayment of a Misexpenditure. In determining an appropriate apportionment of responsibility, CDDP LPHA and ODHS OHA may consider any relevant factors. An example of a relevant factor is the extent to which either party contributed to an interpretation of a statute, regulation or rule prior to the expenditure that was officially reinterpreted after the expenditure. (c) . If ODHS OHA and CDDP LPHA reach agreement on an the amount owed to ODHSOHA, CDDP shall, LPHA shall promptly repay that amount to ODHS OHA by issuing payment to ODHS OHA or direct ODHS by directing OHA to withhold future payments pursuant to subsection 7 d. “Recovery from Future Payments” below. (d) . If ODHS OHA and CDDP LPHA continue to disagree as to whether or not there has been a Misexpenditure or as to the amount owed, the parties may agree to consider further appropriate dispute resolution processes, processes including, subject to Oregon Department of Justice (DOJ) and CDDP Counsel LPHA counsel approval, binding arbitration. (2) Appeal from Federal-Identified Misexpenditure. (a) . If ODHS’ OHA’s notice of Misexpenditure is based on a Misexpenditure of the type described in Exhibit A, Section 34 a. of Exhibit A “Definitions” 15.a. and the relevant federal agency Federal Agency provides a process either by statute or administrative rule to appeal the determination of improper use of Federal Fundsfederal funds, the notice of disallowance or other federal identification of improper use of funds, funds and if the disallowance is not based on a federal or state court judgment founded in allegations of Medicaid Fraud fraud or abuse, then CDDP LPHA may, prior to 30 calendar days prior to the applicable federal appeals deadline, request that ODHS OHA appeal the determination of improper use, notice of disallowance, disallowance or other federal identification of improper use of funds, funds in accordance with the process established or adopted by the federal agency. (b) Federal Agency. If CDDP LPHA so requests that ODHS OHA appeal the determination of improper use of Federal Fundsfederal funds, federal notice of disallowance, disallowance or other federal identification of improper use of funds, the amount in controversy shall, at the option of CDDPLPHA, be retained by CDDP the LPHA or returned to ODHS OHA pending the final federal decision resulting from the initial appeal. (c) appeal If CDDP the LPHA does request, prior to the deadline set forth in (2) (a) above, that ODHS OHA appeal, ODHS OHA shall appeal the determination of improper use, notice of disallowance or other federal identification of improper use of funds in accordance with the established process and shall pursue the appeal until a decision is issued by the Departmental Grant Appeals Board of the U.S. Department of Health and Human Services (HHS) (the “Grant Appeals Board”) pursuant to the process for appeal set forth in 45 C.F.R. CFR. Subtitle A, Part 16, or an equivalent decision is issued under the appeal process established or adopted by the federal agencyFederal Agency. CDDP LPHA and ODHS OHA shall cooperate with each other in pursuing the appeal. (d) . If the Grant Appeals Board or its equivalent denies the appeal, appeal then either CDDPLPHA, ODHSOHA, or both may, in their discretion, pursue further appeals. Regardless of any further appeals, within 90 calendar days of the date the federal decision resulting from the initial appeal is final, CDDP LPHA shall repay to ODHS OHA the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by issuing payment to ODHS OHA or by directing ODHS OHA to withhold future payments pursuant to subsection 7 d. “Recovery From Future Payments” below. To the extent that CDDP LPHA retained any of the amounts amount in controversy while the appeal was pending, CDDP the LPHA shall pay to ODHS OHA the interest, if any, charged by the federal government Federal Government on such amount. (e) . If the relevant federal agency Federal Agency does not provide a process either by statute or administrative rule to appeal the determination of improper use of Federal Fundsfederal funds, the notice of disallowance or other federal identification of improper use of funds or CDDP LPHA does not request that ODHS OHA pursue an appeal prior to 30 calendar days prior to the applicable federal appeals deadline, and if ODHS OHA does not appeal, then within 90 calendar days of the date the federal determination of improper use of Federal Fundsfederal funds, the federal notice of disallowance, disallowance or other federal identification of improper use of funds is final, CDDP final LPHA shall repay to ODHS OHA the amount of the noticed Misexpenditure by issuing a payment to ODHS OHA or by directing ODHS OHA to withhold future payments pursuant to subsection 7 d. “Recovery From Future Payments” below. (f) . If CDDP LPHA does not request that ODHS OHA pursue an appeal of the determination of improper use of Federal Fundsfederal funds, the notice of disallowance, or other federal identification of improper use of funds, prior to 30 calendar days prior to the applicable federal appeals deadline, deadline but ODHS OHA nevertheless appeals, CDDP LPHA shall repay to ODHS OHA the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal), ) within 90 calendar days of the date the federal decision resulting from the appeal is final, by issuing payment to ODHS OHA or by directing ODHS OHA to withhold future payments pursuant to subsection 7 d. “Recover From Future Payments” below. (g) If . Notwithstanding Subsection a, i. through iii. above, if the Misexpenditure was expressly authorized by a ODHS an OHA rule or a ODHS an OHA writing signed by an authorized person that applied when the expenditure was made, but was prohibited by federal statutes or regulations that applied when the expenditure was made, CDDP LPHA will not be responsible for repaying the amount of the Misexpenditure to ODHSOHA, provided that: i. : Where post-expenditure official reinterpretation of federal statutes or regulations results in a Misexpenditure, CDDP LPHA and ODHS OHA will meet and negotiate in good faith an appropriate apportionment of responsibility between them for repayment of the Misexpenditure. ii. For purposes of this sectionSubsection D., a ODHS an OHA writing must interpret this Agreement or a ODHS an OHA rule and be signed by the Director of ODHS the OHA or by one of the following ODHS OHA officers concerning DD Servicesservices in the category where the officers are listed: Public Health Director Public Health Director of the Office of Developmental Disabilities Services; Deputy Director of the Office of Developmental Disabilities Services; Chief Operating Officer of the Office of Developmental Disabilities Services. ODHS Fiscal and Business Operations OHA shall designate alternate officers in the event the offices designated in the previous sentence are abolished. Upon CDDP LPHA request, ODHS OHA shall notify CDDP LPHA of the names of individual officers with the above titles. ODHS OHA shall send XXXX OHA writings described in this paragraph to CDDP LPHA by mail and e-mail and to CDDP’s directors by e- mail. iiiemail. The ODHS writing must be in response to a request from the CDDP LPHA for expenditure authorization, or a statement intended to provide official guidance to the CDDP LPHA or counties generally, generally for making expenditures under this Agreement. The ODHS writing must not be contrary to this Agreement or contrary to law or other applicable authority that is clearly established at the time of the writing. iv. If the ODHS OHA writing is in response to a request from CDDP LPHA for expenditure authorization, the request must be in writing and signed by the director of a CDDP an LPHA department with authority to make such a request or by CDDP the LPHA Counsel. It must identify the supporting data, provisions of this Agreement and provisions of applicable law relevant to determining if the expenditure should be authorized. v. A ODHS . An OHA writing expires on the date stated in the writing, or if no expiration date is stated, upon expiration six years from the date of this Agreementthe writing. An expired ODHS OHA writing continues to apply to CDDP LPHA expenditures that were made in compliance with the writing and during the term of the writing. vi. ODHS OHA may revoke or revise a ODHS an OHA writing at any time if it determines in its sole discretion that the writing allowed expenditure in violation of this Agreement or law or any other applicable authority. However, ODHS is not responsible for a Misexpenditure that was based on a ODHS writing that was effective at the time of the Misexpenditure. vii. The ODHS OHA rule or the ODHS writing does not authorize an expenditure that this Agreement prohibits.

Appeal Process for Misexpenditure. If CDDP notifies ODHS DHS that it wants to engage in an appeal process with respect to a noticed Misexpenditure, the parties shall comply with the following procedures, as applicable. (1) Appeal from ODHSDHS-Identified Misexpenditure. If ODHSDHS’ notice of Misexpenditure is based on a Misexpenditure solely of the type described in Section 34 36 b. or c. of Exhibit A “Definitions”, CDDP and ODHS DHS shall engage in the process described in this subsection to resolve a dispute regarding the noticed Misexpenditure. (a) CDDP and ODHS DHS shall engage in non-binding discussions to give CDDP an opportunity to present reasons why it claims that there is no Misexpenditure or that the amount of the Misexpenditure is different than the amount identified by ODHSDHS; and to give ODHS DHS the opportunity to reconsider its notice of recovery. (b) CDDP and ODHS DHS may negotiate an appropriate apportionment of responsibility for the recovery of a Misexpenditure. At CDDP’s request, ODHS DHS will meet and negotiate with the CDDP in good faith concerning appropriate apportionment of responsibility for recovery of a Misexpenditure. In determining an appropriate apportionment of responsibility, CDDP and ODHS DHS may consider any relevant factors. An example of a relevant factor is the extent to which either party contributed to an interpretation of a statute, regulation or rule prior to the expenditure that was officially reinterpreted after the expenditure. (c) If ODHS DHS and CDDP reach agreement on an amount owed to ODHSDHS, CDDP shall, promptly repay that amount to ODHS DHS by issuing payment to ODHS DHS or direct ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. (d) If ODHS DHS and CDDP continue to disagree as to whether there has been a Misexpenditure or as to the amount owed, the parties may agree to further appropriate dispute resolution processes, including, subject to Department of Justice and CDDP County Counsel approval, binding arbitration. (2) Appeal from Federal-Identified Misexpenditure. (a) If ODHSDHS’ notice of Misexpenditure is based on a Misexpenditure of the type described in Section 34 36. a. of Exhibit A “Definitions” and the relevant federal agency provides a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds, and if the disallowance is not based on a federal or state court judgment founded in allegations of Medicaid Fraud or abuse, then CDDP may, prior to 30 calendar days prior to the applicable federal appeals deadline, request that ODHS DHS appeal the determination of improper use, notice of disallowance, or other federal identification of improper use of funds, in accordance with the process established or adopted by the federal agency. (b) If CDDP so requests that ODHS DHS appeal the determination of improper use of Federal Funds, federal notice of disallowance, or other federal identification of improper use of funds, the amount in controversy shall, at the option of CDDP, be retained by CDDP or returned to ODHS DHS pending the final federal decision resulting from the initial appeal. (c) If CDDP does request, prior to the deadline set forth in (2) (a) above, that ODHS DHS appeal, ODHS DHS shall appeal the determination of improper use, notice of disallowance or other federal identification of improper use of funds in accordance with the established process and shall pursue the appeal until a decision is issued by the Departmental Grant Appeals Board of the Department of Health and Human Services (the “Grant Appeals Board”) pursuant to the process for appeal set forth in 45 C.F.R. Subtitle A, Part 16, or an equivalent decision is issued under the appeal process established or adopted by the federal agency. CDDP and ODHS DHS shall cooperate with each other in pursuing the appeal. (d) If the Grant Appeals Board or its equivalent denies the appeal, then either CDDP, ODHSDHS, or both may, in their discretion, pursue further appeals. Regardless of any further appeals, within 90 calendar days of the date the federal decision resulting from the initial appeal is final, CDDP shall repay to ODHS DHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal) by issuing payment to ODHS DHS or by directing ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. To the extent that CDDP retained any of the amounts in controversy while the appeal was pending, CDDP shall pay to ODHS DHS the interest, if any, charged by the federal government on such amount. (e) If the relevant federal agency does not provide a process either by statute or administrative rule to appeal the determination of improper use of Federal Funds, the notice of disallowance or other federal identification of improper use of funds or CDDP does not request that ODHS DHS pursue an appeal 30 calendar days prior to the applicable federal appeals deadline, and if ODHS DHS does not appeal, then within 90 calendar days of the date the federal determination of improper use of Federal Funds, the federal notice of disallowance, or other federal identification of improper use of funds is final, CDDP shall repay to ODHS DHS the amount of the noticed Misexpenditure by issuing a payment to ODHS DHS or by directing ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. (f) If CDDP does not request that ODHS DHS pursue an appeal of the determination of improper use of Federal Funds, the notice of disallowance, or other federal identification of improper use of funds, prior to 30 calendar days prior to the applicable federal appeals deadline, but ODHS DHS nevertheless appeals, CDDP shall repay to ODHS DHS the amount of the noticed Misexpenditure (reduced, if at all, as a result of the appeal), within 90 calendar days of the date the federal decision resulting from the appeal is final, by issuing payment to ODHS DHS or by directing ODHS DHS to withhold future payments pursuant to subsection 7 d. 6.d. below. (g) If the Misexpenditure was expressly authorized by a ODHS DHS rule or a ODHS DHS writing that applied when the expenditure was made, but was prohibited by federal statutes or regulations that applied when the expenditure was made, CDDP will not be responsible for repaying the amount of the Misexpenditure to ODHSDHS, provided that: i. Where post-expenditure official reinterpretation of federal statutes or regulations results in a Misexpenditure, CDDP and ODHS DHS will meet and negotiate in good faith an appropriate apportionment of responsibility between them for repayment of the Misexpenditure. ii. For purposes of this section, a ODHS DHS writing must interpret this Agreement or a ODHS DHS rule and be signed by the Director of ODHS DHS or by one of the following ODHS DHS officers concerning DD Services: Director of the Office of Developmental Disabilities Services; Deputy Director of the Office of Developmental Disabilities Services; Chief Operating Officer of the Office of Developmental Disabilities Services. ODHS DHS shall designate alternate officers in the event the offices designated in the previous sentence are abolished. Upon CDDP request, ODHS DHS shall notify CDDP of the names of individual officers with the above titles. ODHS DHS shall send XXXX DHS writings described in this paragraph to CDDP by mail and e-mail and to CDDP’s directors by e- e-mail. iii. The ODHS DHS writing must be in response to a request from the CDDP for expenditure authorization, or a statement intended to provide official guidance to the CDDP or counties generally, for making expenditures under this Agreement. The ODHS DHS writing must not be contrary to this Agreement or contrary to law or other applicable authority that is clearly established at the time of the writing. iv. If the ODHS DHS writing is in response to a request from CDDP for expenditure authorization, the request must be in writing and signed by the director of a CDDP department with authority to make such a request or by CDDP County Counsel. It must identify the supporting data, provisions of this Agreement and provisions of applicable law relevant to determining if the expenditure should be authorized. v. A ODHS DHS writing expires on the date stated in the writing, or if no expiration date is stated, upon expiration of this Agreement. An expired ODHS DHS writing continues to apply to CDDP expenditures that were made in compliance with the writing and during the term of the writing. vi. ODHS DHS may revoke or revise a ODHS DHS writing at any time if it determines in its sole discretion that the writing allowed expenditure expenditures in violation of this Agreement or law or any other applicable authority. However, ODHS DHS is not responsible for a Misexpenditure that was based on a ODHS DHS writing that was effective at the time of the Misexpenditure. vii. The ODHS DHS rule or the ODHS DHS writing does not authorize an expenditure that this Agreement prohibits.