Title 42—Public Health--Volume 1
PART 405—FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED
§ 405.921   Notice of initial determination.
(a) Notice of initial determination sent to the beneficiary. (1) The notice must be written in a manner calculated to be understood by the beneficiary, and sent to the last known address of the beneficiary.
(2) Content of the notice. The notice of initial determination must contain all of the following:
(i) The reasons for the determination, including whether a local medical review policy, a local coverage determination, or national coverage determination was applied.
(ii) The procedures for obtaining additional information concerning the contractor's determination, such as a specific provision of the policy, manual, law or regulation used in making the determination.
(iii) Information on the right to a redetermination if the beneficiary is dissatisfied with the outcome of the initial determination and instructions on how to request a redetermination.
(iv) Any other requirements specified by CMS.
(b) Notice of initial determination sent to providers and suppliers. (1) An electronic or paper remittance advice (RA) notice is the notice of initial determination sent to providers and suppliers that accept assignment.
(i) The electronic RA must comply with the format and content requirements of the standard adopted for national use by covered entities under the Health Insurance Portability and Accountability Act (HIPAA) and related CMS manual instructions.
(ii) When a paper RA is mailed, it must comply with CMS manual instructions that parallel the HIPAA data content and coding requirements.
(2) The notice of initial determination must contain all of the following:
(i) The basis for any full or partial denial determination of services or items on the claim.
(ii) Information on the right to a redetermination if the provider or supplier is dissatisfied with the outcome of the initial determination.
(iii) All applicable claim adjustment reason and remark codes to explain the determination.
(iv) The source of the RA and who may be contacted if the provider or supplier requires further information.
(v) All content requirements of the standard adopted for national use by covered entities under HIPAA.
(vi) Any other requirements specified by CMS.
(c) Notice of initial determination sent to an applicable plan —(1) Content of the notice. The notice of initial determination under § 405.924(b)(16) must contain all of the following:
(i) The reasons for the determination.
(ii) The procedures for obtaining additional information concerning the contractor's determination, such as a specific provision of the policy, manual, law or regulation used in making the determination.
(iii) Information on the right to a redetermination if the liability insurance (including self-insurance), no-fault insurance, or workers' compensation law or plan is dissatisfied with the outcome of the initial determination and instructions on how to request a redetermination.
(iv) Any other requirements specified by CMS.
(2) [Reserved]
§ 405.922   Time frame for processing initial determinations.
The contractor issues initial determinations on clean claims within 30 calendar days of receipt if they are submitted by or on behalf of the beneficiary who received the items and/or services; otherwise, interest must be paid at the rate specified at 31 U.S.C. 3902(a) for the period beginning on the day after the required payment date and ending on the date payment is made.
§ 405.924   Actions that are initial determinations.
(a) Applications and entitlement of individuals. SSA makes initial determinations and processes reconsiderations with respect to an individual on the following:
(1) A determination with respect to entitlement to hospital insurance or supplementary medical insurance under Medicare.
(2) A disallowance of an individual's application for entitlement to hospital or supplementary medical insurance, if the individual fails to submit evidence requested by SSA to support the application. (SSA specifies in the initial determination the conditions of entitlement that the applicant failed to establish by not submitting the requested evidence).
(3) A denial of a request for withdrawal of an application for hospital or supplementary medical insurance, or a denial of a request for cancellation of a request for withdrawal.
(4) A determination as to whether an individual, previously determined as entitled to hospital or supplementary medical insurance, is no longer entitled to those benefits, including a determination based on nonpayment of premiums.
(5) An adjustment of premium for hospital or supplementary medical insurance as outlined in §§ 406.32(d), 408.20(e), and 408.22 of this chapter, and 20 CFR 418.1301.
(b) Claims made by or on behalf of beneficiaries. The Medicare contractor makes initial determinations regarding claims for benefits under Medicare Part A and Part B. A finding that a request for payment or other submission does not meet the requirements for a Medicare claim as defined in § 424.32 of this chapter, is not considered an initial determination. An initial determination for purposes of this subpart includes, but is not limited to, determinations with respect to any of the following:
(1) If the items and/or services furnished are covered under title XVIII.
(2) In the case of determinations on the basis of section 1879(b) or (c) of the Act, if the beneficiary, or supplier who accepts assignment under § 424.55 of this chapter knew, or could reasonably have expected to know at the time the items or services were furnished, that the items or services were not covered.
(3) In the case of determinations on the basis of section 1842(l)(1) of the Act, if the beneficiary or physician knew, or could reasonably have expected to know at the time the services were furnished, that the services were not covered.
(4) Whether the deductible is met.
(5) The computation of the coinsurance amount.
(6) The number of days used for inpatient hospital, psychiatric hospital, or post-hospital extended care.
(7) Periods of hospice care used.
(8) Requirements for certification and plan of treatment for physician services, durable medical equipment, therapies, inpatient hospitalization, skilled nursing care, home health, hospice, and partial hospitalization services.
(9) The beginning and ending of a spell of illness, including a determination made under the presumptions established under § 409.60(c)(2) of this chapter, and as specified in § 409.60(c)(4) of this chapter.
(10) The medical necessity of services, or the reasonableness or appropriateness of placement of an individual at an acute level of patient care made by the Quality Improvement Organization (QIO) on behalf of the contractor in accordance with § 476.86(c)(1) of this chapter.
(11) Any other issues having a present or potential effect on the amount of benefits to be paid under Part A or Part B of Medicare, including a determination as to whether there was an underpayment of benefits paid under Part A or Part B, and if so, the amount thereof.
(12) If a waiver of adjustment or recovery under sections 1870(b) and (c) of the Act is appropriate—
(i) When an overpayment of hospital insurance benefits or supplementary medical insurance benefits (including a payment under section 1814(e) of the Act) was made for an individual; or
(ii) For a Medicare Secondary Payer recovery claim against a beneficiary or against a provider or supplier.
(13) If a particular claim is not payable by Medicare based upon the application of the Medicare Secondary Payer provisions of section 1862(b) of the Act.
(14) Under the Medicare Secondary Payer provisions of sections 1862(b) of the Act that Medicare has a recovery claim against a provider, supplier, or beneficiary for services or items that were already paid by the Medicare program, except when the Medicare Secondary Payer recovery claim against the provider or supplier is based upon failure to file a proper claim as defined in part 411 of this chapter because this action is a reopening.
(15) A claim not payable to a beneficiary for the services of a physician who has opted-out.
(16) Under the Medicare Secondary Payer provisions of section 1862(b) of the Act that Medicare has a recovery claim if Medicare is pursuing recovery directly from an applicable plan. That is, there is an initial determination with respect to the amount and existence of the recovery claim.
(c) Determinations by QIOs. An initial determination for purposes of this subpart also includes a determination made by a QIO that:
(1) A provider can terminate services provided to an individual when a physician certified that failure to continue the provision of those services is likely to place the individual's health at significant risk; or
(2) A provider can discharge an individual from the provider of services.
§ 405.925   Decisions of utilization review committees.
(a) General rule. A decision of a utilization review committee is a medical determination by a staff committee of the provider or a group similarly composed and does not constitute a determination by the Secretary within the meaning of section 1869 of the Act. The decision of a utilization review committee may be considered by CMS along with other pertinent medical evidence in determining whether or not an individual has the right to have payment made under Part A of title XVIII.
(b) Applicability under the prospective payment system. CMS may consider utilization review committee decisions related to inpatient hospital services paid for under the prospective payment system (see part 412 of this chapter) only as those decisions concern:
(1) The appropriateness of admissions resulting in payments under subparts D, E and G of part 412 of this chapter.
(2) The covered days of care involved in determinations of outlier payments under § 412.80(a)(1)(i) of this chapter; and
(3) The necessity of professional services furnished in high cost outliers under § 412.80(a)(1)(ii) of this chapter.
§ 405.926   Actions that are not initial determinations.
Actions that are not initial determinations and are not appealable under this subpart include, but are not limited to the following:
(a) Any determination for which CMS has sole responsibility, for example one of the following:
(1) If an entity meets the conditions for participation in the program.
(2) If an independent laboratory meets the conditions for coverage of services.
(3) Determination under the Medicare Secondary Payer provisions of section 1862(b) of the Act of the debtor for a particular recovery claim.
(b) The coinsurance amounts prescribed by regulation for outpatient services under the prospective payment system.
(c) Any issue regarding the computation of the payment amount of program reimbursement of general applicability for which CMS or a carrier has sole responsibility under Part B such as the establishment of a fee schedule set forth in part 414 of this chapter, or an inherent reasonableness adjustment pursuant to § 405.502(g), and any issue regarding the cost report settlement process under Part A.
(d) Whether an individual's appeal meets the qualifications for expedited access to judicial review provided in § 405.990.
(e) Any determination regarding whether a Medicare overpayment claim must be compromised, or collection action terminated or suspended under the Federal Claims Collection Act of 1966, as amended.
(f) Determinations regarding the transfer or discharge of residents of skilled nursing facilities in accordance with § 483.5 definition of `transfer and discharge' and § 483.15 of this chapter.
(g) Determinations regarding the readmission screening and annual resident review processes required by subparts C and E of part 483 of this chapter.
(h) Determinations for a waiver of Medicare Secondary Payer recovery under section 1862(b) of the Act.
(i) Determinations for a waiver of interest.
(j) Determinations for a finding regarding the general applicability of the Medicare Secondary Payer provisions (as opposed to the application of these provisions to a particular claim or claims for Medicare payment for benefits).
(k) Except as specified in § 405.924(b)(16), determinations under the Medicare Secondary Payer provisions of section 1862(b) of the Act that Medicare has a recovery against an entity that was or is required or responsible (directly, as an insurer or self-insurer; as a third party administrator; as an employer that sponsors, contributes to or facilitates a group health plan or a large group health plan; or otherwise) to make payment for services or items that were already reimbursed by the Medicare program.
(l) A contractor's, QIC's, ALJ's or attorney adjudicator's, or Council's determination or decision to reopen or not to reopen an initial determination, redetermination, reconsideration, decision, or review decision.
(m) Determinations that CMS or its contractors may participate in the proceedings on a request for an ALJ hearing or act as parties in an ALJ hearing or Council review.
(n) Determinations that a provider or supplier failed to submit a claim timely or failed to submit a timely claim despite being requested to do so by the beneficiary or the beneficiary's subrogee.
(o) Determinations with respect to whether an entity qualifies for an exception to the electronic claims submission requirement under part 424 of this chapter.
(p) Determinations by the Secretary of sustained or high levels of payment errors in accordance with section 1893(f)(3)(A) of the Act.
(q) A contractor's prior determination related to coverage of physicians' services.
(r) Requests for anticipated payment under the home health prospective payment system under § 409.43(c)(ii)(2) of this chapter.
(s) Claim submissions on forms or formats that are incomplete, invalid, or do not meet the requirements for a Medicare claim and returned or rejected to the provider or supplier.
(t) A contractor's prior authorization determination with regard to—
(1) Durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS)); and
(2) Hospital outpatient department (OPD) services.
(u) Issuance of notice to an individual entitled to Medicare benefits under Title XVIII of the Act when such individual received observation services as an outpatient for more than 24 hours, as specified under § 489.20(y) of this chapter.
§ 405.927   Initial determinations subject to the reopenings process.
Minor errors or omissions in an initial determination must be corrected only through the contractor's reopenings process under § 405.980(a)(3).
§ 405.928   Effect of the initial determination.
(a) An initial determination described in § 405.924(a) is binding unless it is revised or reconsidered in accordance with 20 CFR 404.907, or revised as a result of a reopening in accordance with 20 CFR 404.988.
(b) An initial determination described in § 405.924(b) is binding upon all parties to the initial determination unless—
(1) A redetermination is completed in accordance with § 405.940 through § 405.958; or
(2) The initial determination is revised as a result of a reopening in accordance with § 405.980.
(c) An initial determination listed in § 405.924(b) where a party submits a timely, valid request for redetermination under § 405.942 through § 405.944 must be processed as a redetermination under § 405.948 through § 405.958 unless the initial determination involves a clerical error or other minor error or omission.
§ 405.929   Post-payment review.
(a) A contractor may select a claim(s) for post-payment review, which is conducted under the reopening authority in § 405.980.
(b) In conducting a post-payment review, a contractor may issue an additional documentation request to a provider or supplier.
(1) A provider or supplier will be provided 45 calendar days to submit additional documentation in response to a contractor's request, except as stated in paragraph (b)(2) and (c) of this section.
(2) A contractor may accept documentation received after 45 calendar days for good cause. Good cause means situations such as natural disasters, interruptions in business practices, or other extenuating circumstances that the contractor deems good cause in accepting the documentation.
(c) A provider or supplier will be provided 30 calendar days to submit additional documentation in response to a UPIC's request for additional documentation. A UPIC may accept documentation received after 30 calendar days for good cause. Good cause means situations such as natural disasters, interruptions in business practices, or other extenuating circumstances that the UPIC deems good cause in accepting the documentation.
(d) The outcome of a contractor's review will result in either no change to the initial determination or a revised determination under § 405.984.
§ 405.930   Failure to respond to additional documentation request.
If a contractor gives a provider or supplier notice and time to respond to an additional documentation request and the provider or supplier does not provide the additional documentation in a timely manner, the contractor has authority to deny the claim.
§ 405.931   Scope, basis, and definitions.
(a) Scope and basis. The provisions in §§ 405.931 through 405.938—
(1) Implement a federal district court order requiring appeal rights for hospital stays on or after January 1, 2009, for a specified class of beneficiaries under certain conditions (defined in § 405.931(b)) who were admitted to a hospital as inpatients, but were subsequently reclassified by the hospital as outpatients receiving observation services; and
(2) Apply to retrospective appeals, that is, appeals for hospital outpatient services, and as applicable, post-hospital extended care services in a skilled nursing facility (SNF services), furnished to eligible parties as defined in paragraph (b) of this section before the implementation of the prospective appeal process set forth in §§ 405.1210 through 405.1212.
(b) Definitions. For the purposes of the appeals conducted under §§ 405.931 through 405.938, the following definitions apply:
Eligible party means a beneficiary who, on or after January 1, 2009, meets the following criteria, and is, thus, eligible to request an appeal under §§ 405.931 through 405.938:
(i) Was formally admitted as a hospital inpatient.
(ii) While in the hospital was subsequently reclassified as an outpatient receiving observation services (as defined in § 405.931(h)).
(iii) Has received an initial determination (as defined in § 405.920) or a Medicare Outpatient Observation Notice (MOON) (as described in § 489.20(y)) indicating that the observation services are not covered under Medicare Part A.
(iv)(A) Was not enrolled in the Supplementary Medical Insurance program (that is, Medicare Part B coverage) at the time of beneficiary's hospitalization; or
(B) Stayed at the hospital for 3 or more consecutive days but was designated as an inpatient for fewer than 3 days, unless more than 30 calendar days has passed after the hospital stay without the beneficiary's having been admitted to a SNF.
(v) Medicare beneficiaries who meet the requirements of the paragraph (iv)(A) or (B) of this definition but who pursued an administrative appeal and received a final decision of the Secretary before September 4, 2011, are excluded from the definition of an eligible party.
Eligibility contractor means the contractor who meets all of the following:
(i) Is identified on the Medicare.gov website for accepting appeal requests.
(ii) Receives appeal requests and makes determinations regarding eligibility for the appeal under §§ 405.931 through 405.938.
(iii) Issues notices of eligibility.
(iv) Refers valid appeal requests to the processing contractor for a decision on the merits of the appeal.
Processing contractor means the contractor responsible for conducting the first-level appeal and issuing a decision on the merits of the appeal. Appeals under § 405.932 are conducted by the MAC who, at the time of the referral of the request for appeal under § 405.932(d)(2), has jurisdiction over claims submitted by the hospital where the eligible party received the services at issue.
(c) Party to an appeal. For the purposes of the appeals conducted under §§ 405.931 through 405.938, an eligible party is the only party to the appeal. The provisions of § 405.906 do not apply to appeals processed under these provisions, and the provider that furnished services to an eligible party may not file a request for an appeal and is not considered a party to any appeal decision or determination.
(d) Authorized representatives, appointed representatives, or representatives of a deceased eligible party. For the purposes of appeals conducted under §§ 405.931 through 405.938:
(1) The provisions of § 405.910 apply to an eligible party appointing a representative to assist in such appeal, as appropriate, except as follows:
(i) A provider of services who furnished items or services to a beneficiary whose claims are the subject of an appeal under the provisions of §§ 405.931 through 405.938 is prohibited from representing the beneficiary or eligible party in such appeal.
(ii) [Reserved]
(2) An authorized representative (as defined in § 405.902) may act on behalf of an eligible party and has all of the same rights and responsibilities of an eligible party throughout the appeals process.
(3) The provisions of § 405.906(a)(1) apply to a deceased eligible party in the same manner in which such provisions apply to a deceased beneficiary.
(4) The provisions of § 405.906(c) do not apply.
(5) A beneficiary who is an eligible party is considered unrepresented if the beneficiary meets any of the following:
(i) Has not appointed a representative under § 405.910.
(ii) Has an authorized representative as defined in § 405.902.
(iii) Has appointed as its representative a member of the beneficiary's family, a legal guardian, or an individual who routinely acts on behalf of the beneficiary, such as a family member or friend who has a power of attorney.
(iv) Is deceased but met the conditions for an eligible party in paragraph (b)(1) of this section and the appeal is filed by an individual who meets the conditions set forth in § 405.906(a)(1).
(e) Prohibition on assignment of appeal rights. For the purposes of the appeals conducted under §§ 405.931 through 405.938, an eligible party may not assign appeal rights to a provider under the provisions of § 405.912.
(f) Date of receipt of a notice or decision. For the purposes of the appeals conducted under §§ 405.931 through 405.938, the date of receipt of a notice or decision sent by the eligibility contractor, processing contractor or other appeals adjudicator is presumed to be 5 calendar days following the date on the notice unless there is evidence to the contrary.
(g) Three or more consecutive days. For the purposes of the appeals conducted under §§ 405.931 through 405.938, when determining if a beneficiary is an eligible party and for the purposes of determining coverage of SNF services under section 1861 of the Act, inpatient hospital days are counted in accordance with § 409.30, that is, a patient must have a qualifying inpatient stay of at least 3 consecutive calendar days starting with the admission day but not counting the discharge day.
(h) Outpatient receiving observation services. For the purposes of appeals conducted under §§ 405.931 through 405.938 when determining if a beneficiary is an eligible party, a beneficiary is considered an outpatient receiving observation services when the hospital changes beneficiary's status from inpatient to outpatient while the beneficiary is in the hospital and the beneficiary subsequently receives observation services following a valid order for such services.
(i) Conclusive effect of a Part A coverage determination. For the purposes of appeals under §§ 405.931 through 405.938, the determination with respect to coverage under Part A is conclusive and binding with respect to the services furnished and must be applied to any existing appeals with respect to coverage and payment for hospital services under Part B and SNF services (as applicable).
§ 405.932   Right to appeal a denial of Part A coverage resulting from a change in patient status.
(a) Filing an appeal request related to a change in patient status which resulted in the denial of Part A coverage. (1) Only an eligible party, the party's appointed representative, or an authorized representative of an eligible party may request an appeal at any level of the appeals process under §§ 405.931 through 405.938.
(2) To initiate an appeal under §§ 405.931 through 405.938, an eligible party, the party's appointed representative, or an authorized representative of an eligible party must meet the following requirements:
(i) Submit a request for an appeal in writing to the eligibility contractor.
(ii) The request must be received by the eligibility contractor no later than 365 calendar days after the implementation date of the final rule. The eligibility contractor denies the written request if it is not received by the applicable filing timeframe under paragraph (d)(3) of this section, unless the eligible party established good cause for late submission as specified in § 405.942(b)(2) and (3).
(3) If an eligible party (or the party's representative) misfiles a request for appeal with a contractor or government entity other than the eligibility contractor, then for the purpose of determining timeliness of the request for appeal, the date the misfiled request was received by the contractor or government agency is considered the date of receipt. The misfiled request and all documentation must be forwarded to the eligibility contractor within 30 calendar days of receipt, or as soon as practicable.
(b) Content of the appeal request. (1) The written request filed by an eligible party, the party's appointed representative, or an authorized representative of an eligible party may be made on a model CMS form. If the model form is not used, to be valid, the written request must include all of the following identifying information:
(i) Beneficiary name.
(ii) Beneficiary Medicare number (the number on the beneficiary's Medicare card).
(iii) Name of the hospital and dates of hospitalization.
(iv) Name of the SNF and the dates of stay (as applicable).
(2) If the appeal includes SNF services not covered by Medicare, the written request must also include an attestation to the out-of-pocket payment(s) made by the beneficiary for such SNF services and must include documentation of payments made to the SNF for such services.
(i) Payments for an eligible party's SNF services made by a third-party payer do not constitute out-of-pocket expenses or payment for an eligible party. If a third-party payer made payment for the eligible party's SNF services, then the services are excluded from consideration in the appeal.
(ii) Payments made for cost sharing (including, but not limited to, coinsurance and deductible) for SNF services covered by a third-party payer are not considered an out-of-pocket payment for the purposes of this provision.
(iii) Payments made by a family member (including payments made by an individual not biologically related to the beneficiary) for an eligible party's SNF services are considered an out-of-pocket payment for the eligible party.
(3) In the written request for an appeal, an eligible party (or their representative) may include an explanation of why the hospital admission satisfied the relevant criteria for Part A coverage and should have been covered under the Part A hospital insurance benefit instead of under the Part B supplementary medical insurance benefit.
(c) Evidence and other information to be submitted with the appeal request. (1) Eligible parties (or their representatives) are encouraged to submit all available information and documentation, including medical records related to the hospital stay and SNF services, as applicable, at issue in the appeal with the written request for an appeal.
(2) If the eligibility contractor determines there is information missing from the request that is needed to establish the beneficiary's eligibility as a party under § 405.931(b) or satisfy other conditions for eligibility for an appeal, the eligibility contractor works with the appropriate MAC and attempts to obtain the information from the provider or the eligible party (or the party's representative) or both, as applicable. The eligibility contractor allows up to 120 calendar days for submission of missing information.
(3) If the necessary information cannot be obtained from either the provider or the eligible party (or the party's representative), the eligibility contractor makes an eligibility determination based on the information available.
(d) Determining eligibility for an appeal. (1)(i) The eligibility contractor reviews the information submitted with the appeal request and any additional information it obtains to determine if the individual submitting the appeal request is an eligible party and that the services previously furnished are eligible for an appeal under § 405.931.
(ii) The eligibility contractor mails or otherwise transmits the notice of its determination to the eligible party (or the party's representative) within 60 calendar days of receipt of the appeal request.
(iii) The time between the eligibility contractor's request for missing information and receipt of such information (or in the case of information that is requested but is not received, the time allowed by the contractor to submit the information) does not count toward the timeframe for issuing a notice to the eligible party (or the party's representative).
(2) If the eligibility contractor determines that the individual is an eligible party and the services previously furnished are eligible for an appeal, the eligibility contractor—
(i) Issues a notice of acceptance to the eligible party (or the party's representative), explaining that the appeal has been accepted for processing; and
(ii) Refers the appeal to the processing contractor for adjudication under paragraph (f) of this section.
(3)(i) If the eligibility contractor determines that the request for appeal is untimely or incomplete, the individual does not satisfy the requirements for an eligible party, or the services previously furnished are not eligible for an appeal, the eligibility contractor issues a denial notice to the individual (or the party's representative) in writing.
(ii) The denial notice explains that the request is not eligible for an appeal, the reason(s) for the denial of the appeal request, the information needed to cure the denial, and the process for requesting a review of the eligibility denial under paragraph (e) of this section.
(4) Notices regarding eligibility for an appeal issued by the eligibility contractor are written in a manner to be understood by the eligible party or the party's representative.
(e) Review of an eligibility contractor's denial of a request for an appeal. (1)(i) An individual (or their representative) may request a review of the eligibility contractor's denial of a request for an appeal by filing a request in writing with the eligibility contractor.
(ii) The request for review should explain the reason(s) the denial of the request for an appeal was incorrect, and should include additional information, as applicable, to support the validity of the original appeal request.
(2) The request for review, with any additional information, must be received by the eligibility contractor no later than 60 calendar days from the date of receipt of the denial notice. If the request for review is received after this deadline, the individual (or the individual's representative) must establish good cause for untimely filing. In determining whether good cause for untimely filing exists, the eligibility contractor applies the provisions in § 405.942(b)(2) and (3).
(3) The review by the eligibility contractor must be conducted by individuals not involved in the initial denial of the request for an appeal.
(4) The eligibility contractor may issue a decision that affirms or reverses the denial of the request for an appeal or may dismiss the request for review. The notice of the eligibility contractor's decision must meet both of the following requirements:
(i) Be written in a manner to be understood by the individual or the individual's representative.
(ii) Be mailed or otherwise transmitted in writing within 60 calendar days of the date of receipt of the request for review.
(5) If the decision is to affirm the denial, or dismiss the request, the eligibility contractor must explain the rationale for the decision.
(6) A denial notice under paragraph (d)(3) of this section issued due to receipt of an untimely appeal request must be reversed if the eligible party (or the party's representative) establishes good cause for late filing under § 405.942(b)(2) and (3).
(7) If the eligibility contractor reverses the initial denial of the request for appeal, the eligibility contractor forwards the request for appeal to the processing contractor under paragraph (f) of this section.
(8) The eligibility contractor's decision that affirms the initial denial of a request for an appeal is binding and not subject to further review.
(9) If the eligibility contractor determines that the request for review of the eligibility denial under paragraph (e)(2) of this section was not submitted timely, and the eligibility contractor did not find good cause for the untimely submission, then the eligibility contractor dismisses the request for review, and such dismissal is binding and not subject to further review.
(f) Processing eligible requests for appeal. (1) If the processing contractor determines there is necessary information missing from the appeal case file, the processing contractor attempts to obtain the information from the provider or the eligible party (or the party's representative), as applicable.
(i) The processing contractor allows the provider or eligible party (or the party's representative), or both, up to 60 calendar days to submit missing information.
(ii) If the provider or eligible party (or the party's representative) does not submit the missing information within the allotted time, the processing contractor makes a decision on the request for appeal based on the information available.
(iii) The time between the processing contractor's request for information and receipt of such information (or in the case of information that is requested but is not received, the time allowed by the contractor to submit the information) does not count toward the timeframe for issuing the processing contractor's decision.
(2) The processing contractor reviews the information submitted with the appeal request and any additional information it obtains to determine if the inpatient admission satisfied the relevant criteria for Part A coverage at the time services were furnished. If the appeal request also includes a request to review denied SNF services that are eligible for an appeal, the processing contractor also determines if such eligible SNF services satisfied relevant criteria for Part A coverage at the time the services were furnished.
(3) Subject to the provisions in paragraph (f)(1) of this section, the processing contractor mails or otherwise transmits its written decision on the request for appeal within 60 calendar days of receipt of the request.
(g) Notice and content of the decision. (1) If the processing contractor determines that the inpatient admission, and as applicable, SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, then the processing contractor issues notice of the favorable decision to the eligible party (or the party's representative). The processing contractor also notifies the hospital and SNF, as applicable, in the case of a favorable determination for Part A coverage.
(2)(i) If the processing contractor determines that the inpatient admission, or as applicable, SNF services, did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, then the processing contractor issues notice of the unfavorable or partially favorable decision to the eligible party (or the party's representative).
(ii) The processing contractor issues a notice of a partially favorable decision to the SNF if the inpatient admission satisfied the relevant criteria for Part A coverage, but the SNF services did not satisfy the relevant criteria for Part A coverage.
(3) The notice issued to the eligible party (or the party's representative) must be written in a manner calculated to be understood by the eligible party (or the party's representative) and include all of the following:
(i) A clear statement of the decision made by the processing contractor.
(ii) The reason the hospital admission, and as applicable, the SNF services, satisfied or did not satisfy the relevant criteria for Part A coverage at the time the services were furnished.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) If a favorable decision, the effect of such decision, including, as applicable, a statement about the obligation of the SNF to refund any amounts collected for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amounts of benefits due.
(vi) If an unfavorable or partially favorable decision, a statement of any specific missing documentation that should be submitted with a request for reconsideration, if applicable.
(vii) The procedures for obtaining additional information concerning the decision, such as specific provisions of the policy, manual, regulations, or other rules used in making the decision.
(viii) If an unfavorable or partially favorable decision, information about the procedures for filing a request for reconsideration under § 405.934.
(ix) Any other requirements specified by CMS.
(4) As applicable, a notice of a favorable decision issued to the SNF (including a decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of beneficiary's hospitalization), includes all of the following:
(i) A clear statement of the decision made by the processing contractor.
(ii) The reason the SNF services satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) The effect of such decision, including a statement explaining that the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for covered services.
(vi) Any other requirements specified by CMS.
(5) In the case of a favorable decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, notice is issued to the hospital that includes all of the following:
(i) A clear statement of the decision made by the processing contractor.
(ii) The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) The effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(vi) Any other requirements specified by CMS.
(6) In the case of a partially favorable decision issued to a SNF, the notice includes the following:
(i) A clear statement of the decision made by the processing contractor.
(ii) The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and the reason the SNF services did not satisfy the relevant criteria for Part A coverage.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) The effect of such decision, including a statement explaining that the decision is being sent for informational purposes only, and that only the eligible party may appeal the decision to a QIC under § 405.934.
(vi) Any other requirements specified by CMS.
(h) Effect of a favorable appeal decision. (1)(i) If the processing contractor issues a decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including Part A SNF coverage, if applicable.
(ii) For the purposes of effectuating a favorable decision by the processing contractor, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2) In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable:
(i) The SNF that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision.
(ii) In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision.
(iii) In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3) The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(i) A favorable appeal decision is considered binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986.
(ii) The provisions regarding reopening of a redetermination in § 405.980(b) and (c) apply in the same manner to favorable decisions issued under this section.
(4) The notice of a favorable decision issued to a hospital and, as applicable, a SNF does not convey party status to such provider.
(i) Effect of an unfavorable or partially favorable decision. (1) An unfavorable or partially favorable appeal decision is considered binding unless—
(i) It is reopened and revised under the provisions of §§ 405.980 through 405.986; or
(ii) An eligible party (or the party's representative) files a request for reconsideration under § 405.934.
(2) The provisions regarding reopening of a redetermination in § 405.980(b) and (c) apply in the same manner to unfavorable or partially favorable decisions issued under this section.
§ 405.934   Reconsideration.
(a) Filing a request for reconsideration. An eligible party, the party's appointed representative, or an authorized representative who is dissatisfied with the decision rendered by a processing contractor in § 405.932(g)(2) may request a reconsideration with a QIC within 180 calendar days of receipt of the processing contractor's notice. The request for reconsideration must include the elements specified in the processing contractor's notice.
(b) Applicability of other provisions. The provisions in §§ 405.960 through 405.978 that apply to reconsiderations of initial determinations apply to the extent they are appropriate/in the same manner to reconsiderations performed by a QIC under this section unless otherwise specified.
(c) Notice and content of a reconsideration. (1) If the QIC determines that the inpatient admission, and as applicable, eligible SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, then the QIC issues notice of the favorable reconsideration to the eligible party (or the party's representative). The QIC also notifies the hospital and SNF, as applicable, in the case of a favorable determination for Part A coverage.
(2)(i) If the QIC determines that the inpatient admission, or as applicable, SNF services, did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, then the QIC issues notice of the unfavorable or partially favorable reconsideration to the eligible party (or the party's representative).
(ii) The QIC issues a notice of a partially favorable reconsideration to the SNF if the inpatient admission satisfied the relevant criteria for Part A coverage, but the SNF services did not satisfy the relevant criteria for Part A coverage.
(3) The notice of reconsideration must be mailed or otherwise transmitted within 60 calendar days of the QIC's receipt of the request for reconsideration, subject to the exceptions specified in § 405.970.
(4) The notice of reconsideration issued to the eligible party (or the party's representative) must be written in a manner calculated to be understood by the eligible party (or the party's representative) and include all of the following:
(i) A clear statement of the decision made by the QIC.
(ii) The reason the hospital admission, and as applicable, the SNF services, satisfied or did not satisfy the relevant criteria for Part A coverage at the time the services were furnished.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) If a favorable decision, the effect of such decision, including a statement about the obligation of the SNF to refund any amounts collected for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amounts of benefits due.
(vi) If the decision in § 405.932(f) indicated that specific documentation should be submitted with the reconsideration request, and the documentation was not submitted with the request for reconsideration, the summary must indicate how the missing documentation affected the reconsideration.
(vii) The procedures for obtaining additional information concerning the decision, such as specific provisions of the policy, manual, regulations, or other rules used in making the decision.
(viii) If an unfavorable or partially favorable decision, information concerning an eligible party's right to an ALJ hearing, including the applicable amount in controversy requirement and aggregation provisions and other procedures for filing a request for an ALJ hearing under § 405.936.
(ix) Any other requirements specified by CMS.
(5) As applicable, a notice of a favorable reconsideration issued to the SNF (including a decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization), includes all of the following:
(i) A clear statement of the decision made by the QIC.
(ii) The reason the SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) The effect of such decision, including a statement explaining the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for the covered services.
(vi) Any other requirements specified by CMS.
(6) In the case of a favorable reconsideration for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, notice is issued to the hospital that includes all the following:
(i) A clear statement of the decision made by the QIC.
(ii) The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) The effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(vi) Any other requirements specified by CMS.
(7) In the case of a partially favorable reconsideration issued to a SNF the notice includes the following:
(i) A clear statement of the decision made by the QIC.
(ii) The reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and the reason the SNF services did not satisfy the relevant criteria for Part A coverage.
(iii) A summary of the facts, including as appropriate, a summary of any clinical or scientific evidence used in making the determination.
(iv) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case.
(v) The effect of such decision, including a statement explaining that the decision is being sent for informational purposes only, and that only the eligible party may appeal the decision to an ALJ under § 405.936.
(vi) Any other requirements specified by CMS.
(d) Effect of a favorable reconsideration. (1)(i) If the QIC issues a reconsideration decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including both Part A hospital coverage and Part A SNF coverage, if applicable.
(ii) For the purposes of effectuating a favorable reconsideration, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2) In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable—
(i) The SNF that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision;
(ii) In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision;
(iii) In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3) The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(4) A favorable reconsideration is considered binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986. The provisions regarding reopening of a reconsideration in § 405.980(d) and (e) apply in the same manner to favorable reconsiderations issued under this section.
(5) The notice of a favorable reconsideration sent to a hospital and, as applicable, a favorable or partially favorable reconsideration sent to a SNF does not convey party status.
(e) Effect of an unfavorable or partially favorable reconsideration. (1) An unfavorable or partially favorable reconsideration is considered binding unless—
(i) It is reopened and revised under the provisions of § 405.980(d) or (e); or
(ii) An eligible party (or the party's representative) files a request for a hearing by an ALJ under § 405.936.
(2) The provisions regarding reopening of a reconsideration in § 405.980(d) and (e) apply in the same manner to unfavorable and partially favorable decisions issued under this section.
§ 405.936   Hearings before an ALJ and decisions by an ALJ or Attorney Adjudicator.
(a) Filing a request for hearing. An eligible party, the party's appointed representative, or an authorized representative who is dissatisfied with the reconsideration rendered by a QIC in § 405.934(c)(2), or a dismissal of a request for reconsideration, may request a hearing before an ALJ within 60 calendar days of receipt of the reconsideration. The request for hearing must include the elements specified in the QIC's reconsideration.
(b) Applicability of other provisions. The provisions in §§ 405.1000 through 405.1064 that apply to ALJ hearings and decisions by an ALJ or an attorney adjudicator apply to the extent they are appropriate/in the same manner to ALJ hearings and decisions by an ALJ or an attorney adjudicator under this section unless otherwise specified.
(c) Calculating the amount remaining in controversy for an ALJ hearing or judicial review. (1)(i) A request for ALJ hearing for an appeal under the provisions of §§ 405.931 through 405.938 must meet the amount in controversy requirement in § 405.1006(b).
(ii) A request for judicial review in federal district court for an appeal under the provisions of §§ 405.931 through 405.938 must meet the amount in controversy requirement in § 405.1006(c), subject to the calculation methodology set forth in this paragraph.
(2) For appeals under the provisions of §§ 405.931 through 405.938, the amount remaining in controversy for an ALJ hearing or for judicial review in federal district court under § 405.1136 is determined by the sum of the billed charges on the Part B outpatient hospital claim and, as applicable, any billed charges for the SNF claim at issue, if such claims were submitted to Medicare. If no SNF claim was submitted for services furnished to the beneficiary, then the billed charges to the beneficiary as indicated on an itemized statement or evidence of payment made by the beneficiary for such services are used in calculating the amount remaining in controversy.
(3) In the case of an appeal under the provisions of §§ 405.931 through 405.938 filed by an eligible party who was not enrolled in Part B at the time of hospitalization, and no Part B outpatient hospital claim was billed to Medicare, the amount remaining in controversy is determined by the charges billed to the beneficiary by the hospital for the outpatient hospital stay and billed charges for SNF services, if applicable. An itemized statement from the provider such services, or evidence of the payment made by the beneficiary to the provider is acceptable for the purpose of calculating the amount remaining in controversy.
(4) Any payments made, including coinsurance and deductible, for the Part B outpatient hospital claim, and as applicable, the SNF claim must not reduce the calculation of the amount in controversy for the purposes of a hearing or judicial review under this paragraph.
(d) Notice and content of an ALJ or attorney adjudicator decision. (1)(i) If the ALJ or attorney adjudicator determines that the inpatient admission, and as applicable, eligible SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, then the ALJ or attorney adjudicator issues notice of the favorable decision to the eligible party (or the party's representative).
(ii) The ALJ or attorney adjudicator also notifies the hospital and SNF, as applicable, in the case of a favorable determination for Part A coverage.
(2)(i) If the ALJ or attorney adjudicator determines that the inpatient admission, or as applicable, SNF services, did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, then the ALJ or attorney adjudicator issues notice of the unfavorable or partially favorable decision to the eligible party (or the party's representative).
(ii) The ALJ or attorney adjudicator issues a notice of a partially favorable decision to the SNF if the inpatient admission satisfied the relevant criteria for Part A coverage, but the SNF services did not satisfy the relevant criteria for Part A coverage.
(3) The ALJ or attorney adjudicator decision issued to the eligible party (or the party's representative) must be written in a manner calculated to be understood by the eligible party (or the party's representative) and include all of the following:
(i) A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii) The findings of fact.
(iii) The conclusions of law.
(iv) The reason for the determination that the hospital admission, and as applicable SNF services, satisfied or did not satisfy the relevant criteria for Part A coverage at the time the services were furnished, and, to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v) The procedures for obtaining additional information concerning the decision, such as specific provisions of the policy, manual, regulations, or other rules used in making the decision.
(vi) If a favorable decision, the effect of such decision, including, as applicable, a statement about the obligation of the SNF to refund any amounts collected for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amount of benefits due.
(vii) If an unfavorable decision or a partially favorable decision, information about the procedures for filing a request for review by the Appeals Council under § 405.938.
(4) As applicable, a notice of a favorable ALJ or attorney adjudicator decision (including a decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization) issued to the SNF, includes the following:
(i) A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii) The findings of fact.
(iii) The conclusions of law.
(iv) The reason for the determination that the SNF services, satisfied the relevant criteria for Part A coverage at the time the services were furnished, and to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v) The effect of such decision, including a statement explaining that the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for the covered services.
(5) In the case of a favorable ALJ or attorney adjudicator decision for a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of beneficiary's hospitalization, notice is issued to the hospital that includes all of the following:
(i) A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii) The findings of fact.
(iii) The conclusions of law.
(iv) The reason for the determination that the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v) The effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(6) In the case of a partially favorable decision issued to a SNF, the notice includes the following:
(i) A clear statement of the decision made by the ALJ or attorney adjudicator.
(ii) The findings of fact.
(iii) The conclusions of law.
(iv) The reason for the determination that the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, and the reason the SNF services did not satisfy the relevant criteria for Part A coverage, and to the extent appropriate, a summary of any clinical or scientific evidence used in making the determination.
(v) The effect of such decision, including a statement explaining that the decision is being sent for informational purposes only, and that only the eligible party may appeal the decision to the Medicare Appeals Council under § 405.938.
(7) The timeframe within which notices must be issued under this paragraph are determined under the provisions in § 405.1016.
(e) Effect of a favorable ALJ or attorney adjudicator decision. (1)(i) If the ALJ or attorney adjudicator issues a decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including Part A SNF coverage, if applicable.
(ii) For the purposes of effectuating a favorable decision by an ALJ or attorney adjudicator, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2) In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable—
(i) The SNF that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision;
(ii) In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision;
(iii) In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3) The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(4) A favorable ALJ or attorney adjudicator decision is considered binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986. The provisions regarding reopening of an ALJ or attorney adjudicator decision in § 405.980(d) and (e) apply in the same manner to favorable ALJ or attorney adjudicator decisions issued under this section.
(5) The notice of a favorable decision issued to a hospital and, as applicable, notice of a favorable or partially favorable decision sent to a SNF does not convey party status to such provider.
(f) Effect of an unfavorable or partially favorable ALJ or attorney adjudicator decision. (1) An unfavorable or partially favorable ALJ or attorney adjudicator decision is considered binding unless—
(i) It is reopened and revised under the provisions of § 405.980(d) or (e); or
(ii) An eligible party (or the party's representative) files a request for Medicare Appeals Council review under § 405.938.
(2) The provisions regarding reopening of an ALJ or attorney adjudicator decision in § 405.980(d) and (e) apply in the same manner to unfavorable and partially favorable decisions issued under this section.
§ 405.938   Review by the Medicare Appeals Council and judicial review.
(a) Filing a request for Council review. An eligible party, the party's appointed representative, or an authorized representative who is dissatisfied with the unfavorable decision of an ALJ or an attorney adjudicator in § 405.936(d)(2) may request the Council review the decision within 60 calendar days of receipt of the decision. The request for review must contain the elements specified in the ALJ or attorney adjudicator's decision notice.
(b) Applicability of other provisions. The provisions in §§ 405.1100 through 405.1130 that apply to Council review apply to the extent they are appropriate/in the same manner to Council review under this section unless otherwise specified.
(c) Notice of the Council's action. (1) After it has reviewed all the evidence in the administrative record and any additional evidence received, subject to the limitations on consideration of additional evidence in § 405.1122, the Council makes a decision or remands the case to an ALJ or attorney adjudicator.
(2) The Council may adopt, modify, or reverse the ALJ's or attorney adjudicator's decision or recommended decision.
(3) Notice of the Council's decision or remand order is issued to the eligible party (or the party's representative).
(i) In the case of a modification or reversal of the ALJ's or attorney adjudicator's decision that is favorable to the eligible party, the Council's decision includes information regarding the effect of such decision, including, as applicable, a statement about the obligation of the SNF to refund any amounts collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) for services covered under Part A in order to determine the amount of benefits due.
(ii) If the appeal involves a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, a modification or reversal of the ALJ's or attorney adjudicator's decision that is favorable to the eligible party with respect to hospital services also includes a statement about the obligation of the hospital to refund any amounts collected for the outpatient hospital services, and that the hospital may then submit a new claim for covered inpatient hospital services in order to determine the amount of benefits due.
(iii)(A) If the Council adopts or modifies an ALJ or attorney adjudicator decision that is unfavorable or partially favorable to the eligible party, the decision includes information about the procedures for filing a request for judicial review under § 405.1136, including information regarding the amount in controversy requirement in § 405.936(c).
(B) A partially favorable decision issued by the Council refers to a determination that the inpatient admission satisfied the relevant criteria for Part A coverage but the SNF services did not satisfy the relevant criteria for Part A coverage.
(4) Notice of a Council decision, favorable or partially favorable to the eligible party, that modifies or reverses the decision or recommended decision by an ALJ or attorney adjudicator, or a remand order that is favorable to the eligible party, is issued to the SNF, as applicable, and to the hospital in the case of an appeal filed by, or on behalf of, a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of hospitalization.
(i)(A) Notice issued to the SNF includes information regarding the effect of such decision, including, as applicable, a statement explaining that the SNF must refund any payments collected from the beneficiary for the covered SNF services, and that the SNF may then submit a new claim(s) to determine the amount of benefits due for the covered services.
(B) A decision that is partially favorable to the eligible party is sent to the SNF and explains the reason the hospital admission satisfied the relevant criteria for Part A coverage at the time the services were furnished, the reason the SNF services did not satisfy the relevant criteria for Part A coverage and explains that the decision is being sent for informational purposes only.
(ii) Notice issued to a hospital (in the case of an appeal filed by, or on behalf of, a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of hospitalization) includes information regarding the effect of such decision, including a statement explaining that the hospital must refund any payments collected for the outpatient hospital services, and that the hospital may then submit a new Part A inpatient claim in order to determine the amount of benefits due for covered services.
(5) The timeframe within which notices must be sent under this paragraph are determined under the provisions in § 405.1100.
(d) Effect of a favorable Council decision. (1)(i) If the Council issues a decision that the beneficiary's inpatient admission satisfied the relevant criteria for Part A coverage and the hospital's decision to change the inpatient admission to outpatient receiving observation services was therefore erroneous, the beneficiary's reclassification as an outpatient is disregarded for the purposes of determining Part A benefits, including both Part A hospital coverage and Part A SNF coverage, if applicable.
(ii) For the purposes of effectuating a favorable decision by the Council, unless a Part A claim is submitted by a hospital, any claims previously submitted for outpatient hospital services and payments made for such services (including any applicable deductible and coinsurance amounts) are not reopened or revised by the MAC, and payment, as applicable, for covered SNF services may be made by the MAC to the SNF without regard to the hospital claim.
(2) In order to determine Part A benefits to be paid and to make payment for covered services as a result of a favorable decision, as applicable—
(i) The SNF, that furnished services to the beneficiary must refund payments previously collected from the beneficiary for the covered services and may then submit a Part A claim(s) for such services within 365 calendar days of receipt of the notice of a favorable decision;
(ii) In the case of a beneficiary not enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services. After the refund is issued, the hospital may then submit a Part A inpatient claim for such services within 365 calendar days of receipt of the notice of a favorable decision;
(iii) In the case of a beneficiary enrolled in the Supplementary Medical Insurance program (Medicare Part B) at the time of the beneficiary's hospitalization, the hospital that furnished services must refund any payments collected for the outpatient hospital services only if the hospital chooses to submit a Part A inpatient claim for such services. The deadline for submitting a Part A claim for such services is 365 calendar days after receipt of the notice of a favorable decision, and the hospital must refund any payments collected for the outpatient services before submitting the Part A inpatient claim.
(3) The hospital, and as applicable, the SNF, must comply with all applicable provisions regarding charges to the beneficiary for covered services, including but not limited to relevant provisions in part 489 subparts B through D of this chapter.
(4) A favorable Council decision is considered final and binding unless it is reopened and revised under the provisions of §§ 405.980 through 405.986. The provisions regarding reopening of a Council decision in § 405.980(d) and (e) apply in the same manner to favorable Council decisions issued under this section.
(5) The notice of a favorable decision issued to a hospital and, as applicable, notice of a favorable or partially favorable decision issued to SNF does not convey party status to such provider.
(e) Effect of an unfavorable or partially favorable Appeals Council decision. (1) An unfavorable or partially favorable Appeals Council decision is considered final and binding unless it is reopened and revised under the provisions of § 405.980(d) or (e), or a Federal district court issues a decision modifying the Council's decision.
(2) The provisions regarding reopening of an Appeals Council decision in § 405.980(d) and (e) apply in the same manner to unfavorable and partially favorable decisions issued under this section.
(f) Judicial review. (1) An eligible party (or the party's representative) dissatisfied with a final and binding decision under paragraph (e) of this section who satisfies the amount in controversy requirement in § 405.936(c) may request judicial review in Federal district court under the procedures set forth in § 405.1136.
(2) An eligible party (or the party's representative) who satisfies the amount in controversy requirement in § 405.936(c) and the requirements to escalate a case from the Council in § 405.1132 may request judicial review in Federal district court under the procedures set forth in § 405.1136.
§ 405.940   Right to a redetermination.
A person or entity that may be a party to a redetermination in accordance with § 405.906(b) and that is dissatisfied with an initial determination may request a redetermination by a contractor in accordance with § 405.940 through § 405.958, regardless of the amount in controversy.
§ 405.942   Time frame for filing a request for a redetermination.
(a) Time frame for filing a request. Except as provided in paragraph (b) of this section, any request for redetermination must be filed within 120 calendar days from the date a party receives the notice of the initial determination.
(1) For purposes of this section, the date of receipt of the initial determination will be presumed to be 5 calendar days after the date of the notice of initial determination, unless there is evidence to the contrary.
(2) The request is considered as filed on the date it is received by the contractor.
(b) Extending the time frame for filing a request. General rule. If the 120 calendar day period in which to file a request for a redetermination has expired and a party shows good cause, the contractor may extend the time frame for filing a request for redetermination.
(1) How to request an extension. A party may file a request for an extension of time for filing a request for a redetermination with the contractor. The party should include any evidence supporting the request for extension. The request for redetermination extension must—
(i) Be in writing;
(ii) State why the request for redetermination was not filed within the required time frame; and
(iii) Meet the requirements of § 405.944.
(2) How the contractor determines if good cause exists. In determining if a party has good cause for missing a deadline to request a redetermination, the contractor considers—
(i) The circumstances that kept the party from making the request on time;
(ii) If the contractor's action(s) misled the party; and
(iii) If the party had or has any physical, mental, educational, or linguistic limitations, including any lack of facility with the English language, that prevented the party from filing a timely request or from understanding or knowing about the need to file a timely request.
(3) Examples of good cause. Examples of circumstances when good cause may be found to exist include, but are not limited to, the following situations:
(i) The party was prevented by serious illness from contacting the contractor in person, in writing, or through a friend, relative, or other person; or
(ii) The party had a death or serious illness in his or her immediate family; or
(iii) Important records of the party were destroyed or damaged by fire or other accidental cause; or
(iv) The contractor gave the party incorrect or incomplete information about when and how to request a redetermination; or
(v) The party did not receive notice of the determination or decision; or
(vi) The party sent the request to a Government agency in good faith within the time limit, and the request did not reach the appropriate contractor until after the time period to file a request expired.
§ 405.944   Place and method of filing a request for a redetermination.
(a) Filing location. The request for redetermination must be filed with the contractor indicated on the notice of initial determination.
(b) Content of redetermination request. The request for redetermination must be in writing and should be made on a standard CMS form. A written request that is not made on a standard CMS form is accepted if it contains the same required elements as follows:
(1) The beneficiary's name;
(2) The Medicare number;
(3) Specific service(s) and/or item(s) for which the redetermination is being requested and the specific date(s) of the service;
(4) The name of the party or the representative of the party.
(c) Requests for redetermination by more than one party. If more than one party timely files a request for redetermination on the same claim before a redetermination is made on the first timely filed request, the contractor must consolidate the separate requests into one proceeding and issue one redetermination.
§ 405.946   Evidence to be submitted with the redetermination request.
(a) Evidence submitted with the request. When filing the request for redetermination, a party must explain why it disagrees with the contractor's determination and should include any evidence that the party believes should be considered by the contractor in making its redetermination.
(b) Evidence submitted after the request. When a party submits additional evidence after filing the request for redetermination, the contractor's 60 calendar day decision-making time frame is automatically extended for up to 14 calendar days for each submission.
§ 405.947   Notice to the beneficiary of applicable plan's request for a redetermination.
(a) A CMS contractor must send notice of the applicable plan's appeal to the beneficiary.
(b) Issuance and content of the notice must comply with CMS instructions.
§ 405.948   Conduct of a redetermination.
A redetermination consists of an independent review of an initial determination. In conducting a redetermination, the contractor reviews the evidence and findings upon which the initial determination was based, and any additional evidence the parties submit or the contractor obtains on its own. An individual who was not involved in making the initial determination must make a redetermination. The contractor may raise and develop new issues that are relevant to the claims in the particular case.
§ 405.950   Time frame for making a redetermination.
(a) General rule. The contractor mails, or otherwise transmits, written notice of the redetermination or dismissal to the parties to the redetermination at their last known addresses within 60 calendar days of the date the contractor receives a timely filed request for redetermination.
(b) Exceptions. (1) If a contractor grants an appellant's request for an extension of the 120 calendar day filing deadline made in accordance with § 405.942(b), the 60 calendar day decision-making time frame begins on the date the contractor receives the late-filed request for redetermination, or when the request for an extension is granted, whichever is later.
(2) If a contractor receives from multiple parties timely requests for redetermination of a claim determination, consistent with § 405.944(c), the contractor must issue a redetermination or dismissal within 60 calendar days of the latest filed request.
(3) If a party submits additional evidence after the request for redetermination is filed, the contractor's 60 calendar day decision-making time frame is extended for up to 14 calendar days for each submission, consistent with § 405.946(b).
§ 405.952   Withdrawal or dismissal of a request for a redetermination.
(a) Withdrawing a request. A party that files a request for redetermination may withdraw its request by filing a written and signed request for withdrawal. The request for withdrawal must contain a clear statement that the appellant is withdrawing the request for a redetermination and does not intend to proceed further with the appeal. The request must be received in the contractor's mailroom before a redetermination is issued. The appeal will proceed with respect to any other parties that have filed a timely request for redetermination.
(b) Dismissing a request. A contractor dismisses a redetermination request, either entirely or as to any stated issue, under any of the following circumstances:
(1) When the person or entity requesting a redetermination is not a proper party under § 405.906(b) or does not otherwise have a right to a redetermination under section 1869(a) of the Act;
(2) When the contractor determines the party failed to make out a valid request for redetermination that substantially complies with § 405.944;
(3) When the party fails to file the redetermination request within the proper filing time frame in accordance with § 405.942;
(4) When a beneficiary or the beneficiary's representative files a request for redetermination, but the beneficiary dies while the request is pending, and all of the following criteria apply:
(i) The beneficiary's surviving spouse or estate has no remaining financial interest in the case. In deciding this issue, the contractor considers if the surviving spouse or estate remains liable for the services for which payment was denied or a Medicare contractor held the beneficiary liable for subsequent similar services under the limitation on liability provisions based on the denial of payment for services at issue;
(ii) No other individual or entity with a financial interest in the case wishes to pursue the appeal; and
(iii) No other party filed a valid and timely redetermination request under §§ 405.942 and 405.944;
(5) When a party filing the redetermination request submits a timely written request for withdrawal with the contractor; or
(6) When the contractor has not issued an initial determination on the claim or the matter for which a redetermination is sought.
(c) Notice of dismissal. A contractor mails or otherwise transmits a written notice of the dismissal of the redetermination request to the parties at their last known addresses. The notice states that there is a right to request that the contractor vacate the dismissal action.
(d) Vacating a dismissal. If good and sufficient cause is established, a contractor may vacate its dismissal of a request for redetermination within 180 calendar days from the date of the notice of dismissal.
(e) Effect of dismissal. The dismissal of a request for redetermination is binding unless it is modified or reversed by a QIC under § 405.974(b) or vacated under paragraph (d) of this section.
§ 405.954   Redetermination.
Upon the basis of the evidence of record, the contractor adjudicates the claim(s), and renders a redetermination affirming or reversing, in whole or in part, the initial determination in question.
§ 405.956   Notice of a redetermination.
(a) Notification to parties —(1) General rule. Written notice of a redetermination affirming, in whole or in part, the initial determination must be mailed or otherwise transmitted to all parties at their last known addresses in accordance with the time frames established in § 405.950. Written notice of a redetermination fully reversing the initial determination must be mailed or otherwise transmitted to the appellant in accordance with the time frames established in § 405.950. If the redetermination results in issuance of supplemental payment to a provider or supplier, the Medicare contractor must also issue an electronic or paper RA notice to the provider or supplier.
(2) Overpayment cases involving multiple beneficiaries who have no liability. In an overpayment case involving multiple beneficiaries who have no liability, the contractor may issue a written notice only to the appellant.
(b) Content of the notice for affirmations, in whole or in part. For decisions that are affirmations, in whole or in part, of the initial determination, the redetermination must be written in a manner calculated to be understood by a beneficiary, and contain—
(1) A clear statement indicating the extent to which the redetermination is favorable or unfavorable;
(2) A summary of the facts, including, as appropriate, a summary of the clinical or scientific evidence used in making the redetermination;
(3) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies apply to the facts of the case;
(4) A summary of the rationale for the redetermination in clear, understandable language;
(5) Notification to the parties of their right to a reconsideration and a description of the procedures that a party must follow in order to request a reconsideration, including the time frame within which a reconsideration must be requested;
(6) A statement of any specific missing documentation that must be submitted with a request for a reconsideration, if applicable;
(7) A statement that all evidence the appellant wishes to introduce during the claim appeals process should be submitted with the request for a reconsideration;
(8) Notification that evidence not submitted to the QIC as indicated in paragraph (b)(6) of this section, is not considered at the OMHA level or further appeal, unless the appellant demonstrates good cause as to why that evidence was not provided previously; and
(9) The procedures for obtaining additional information concerning the redetermination, such as specific provisions of the policy, manual, or regulation used in making the redetermination.
(10) Any other requirements specified by CMS.
(c) Content of the notice for a full reversal. For decisions that are full reversals of the initial determination, the redetermination must be in writing and contain—
(1) A clear statement indicating that the redetermination is wholly favorable;
(2) Any other requirements specified by CMS.
(d) Exception for beneficiary appeal requests. (1) The notice must inform beneficiary appellants that the requirements of paragraph (b)(8) of this section are not applicable for purposes of beneficiary appeals.
(2) This exception does not apply for appeal requests from beneficiaries who are represented by providers or suppliers.
§ 405.958   Effect of a redetermination.
In accordance with section 1869(a)(3)(D) of the Act, once a redetermination is issued, it becomes part of the initial determination. The redetermination is binding upon all parties unless—
(a) A reconsideration is completed in accordance with § 405.960 through § 405.978; or
(b) The redetermination is revised as a result of a reopening in accordance with § 405.980.
§ 405.960   Right to a reconsideration.
A person or entity that is a party to a redetermination made by a contractor as described under § 405.940 through § 405.958, and is dissatisfied with that determination, may request a reconsideration by a QIC in accordance with § 405.962 through § 405.966, regardless of the amount in controversy.
§ 405.962   Timeframe for filing a request for a reconsideration.
(a) Timeframe for filing a request. Except as provided in paragraph (b) of this section and in § 405.974(b)(1), regarding a request for QIC reconsideration of a contractor's dismissal of a redetermination request, any request for a reconsideration must be filed within 180 calendar days from the date the party receives the notice of the redetermination.
(1) For purposes of this section, the date of receipt of the redetermination will be presumed to be 5 calendar days after the date of the notice of redetermination, unless there is evidence to the contrary.
(2) For purposes of meeting the 180 calendar day filing deadline, the request is considered as filed on the date it is received by the QIC.
(b) Extending the time for filing a request —(1) General rule. A QIC may extend the 180 calendar day timeframe for filing a request for reconsideration for good cause.
(2) How to request an extension. A party to the redetermination must file its request for an extension of the time for filing the reconsideration request with its request for reconsideration. A party should include evidence to support the request for extension. The request for reconsideration and request for extension must—
(i) Be in writing;
(ii) State why the request for reconsideration was not filed within the required timeframe; and
(iii) Meet the requirements of § 405.964.
(3) How the QIC determines whether good cause exists. In determining whether a party has good cause for missing a deadline to request reconsideration, the QIC applies the good cause provisions contained in § 405.942(b)(2) and (b)(3).
§ 405.964   Place and method of filing a request for a reconsideration.
(a) Filing location. The request for reconsideration must be filed with the QIC indicated on the notice of redetermination.
(b) Content of reconsideration request. The request for reconsideration must be in writing and should be made on a standard CMS form. A written request that is not made on a standard CMS form is accepted if it contains the same required elements, as follows:
(1) The beneficiary's name;
(2) Medicare number;
(3) Specific service(s) and item(s) for which the reconsideration is requested and the specific date(s) of service;
(4) The name of the party or the representative of the party; and
(5) The name of the contractor that made the redetermination.
(c) Requests for reconsideration by more than one party. If more than one party timely files a request for reconsideration on the same claim before a reconsideration is made on the first timely filed request, the QIC must consolidate the separate requests into one proceeding and issue one reconsideration.
§ 405.966   Evidence to be submitted with the reconsideration request.
(a) Evidence submitted with the request. When filing a request for reconsideration, a party should present evidence and allegations of fact or law related to the issue in dispute and explain why it disagrees with the initial determination, including the redetermination.
(1) This evidence must include any missing documentation identified in the notice of redetermination, consistent with § 405.956(b)(6).
(2) Absent good cause, failure to submit all evidence, including documentation requested in the notice of redetermination prior to the issuance of the notice of reconsideration precludes subsequent consideration of that evidence.
(b) Evidence submitted after the request. Each time a party submits additional evidence after filing the request for reconsideration, the QIC's 60 calendar day decisionmaking timeframe is automatically extended by up to 14 calendar days for each submission. This extension does not apply to timely submissions of documentation specifically requested by a QIC, unless the documentation was originally requested in the notice of redetermination.
(c) Exception for beneficiaries and State Medicaid Agencies that file reconsideration requests. (1) Beneficiaries and State Medicaid Agencies that file requests for reconsideration are not required to comply with the requirements of paragraph (a) of this section. However, the automatic 14 calendar day extension described in paragraph (b) of this section applies to each evidence submission made after the request for reconsideration is filed.
(2) Beneficiaries who are represented by providers or suppliers must comply with the requirements of paragraph (a) of this section.
§ 405.968   Conduct of a reconsideration.
(a) General rules. (1) A reconsideration consists of an independent, on-the-record review of an initial determination, including the redetermination and all issues related to payment of the claim. In conducting a reconsideration, the QIC reviews the evidence and findings upon which the initial determination, including the redetermination, was based, and any additional evidence the parties submit or that the QIC obtains on its own. If the initial determination involves a finding on whether an item or service is reasonable and necessary for the diagnosis or treatment of illness or injury (under section 1862(a)(1)(A) of the Act), a QIC's reconsideration must involve consideration by a panel of physicians or other appropriate health care professionals, and be based on clinical experience, the patient's medical records, and medical, technical, and scientific evidence of record to the extent applicable.
(b) Authority of the QIC. (1) National coverage determinations (NCDs), CMS Rulings, Council decisions designated by the Chair of the Departmental Appeals Board as having precedential effect under § 401.109 of this chapter, and applicable laws and regulations are binding on the QIC.
(2) QICs are not bound by LCDs, LMRPs, or CMS program guidance, such as program memoranda and manual instructions, but give substantial deference to these policies if they are applicable to a particular case. A QIC may decline to follow a policy, if the QIC determines, either at a party's request or at its own discretion, that the policy does not apply to the facts of the particular case.
(3) If a QIC declines to follow a policy in a particular case, the QIC's reconsideration explains the reasons why the policy was not followed.
(4) A QIC's decision to decline to follow a policy under this section applies only to the specific claim being reconsidered and does not have precedential effect.
(5) A QIC may raise and develop new issues that are relevant to the claims in a particular case provided that the contractor rendered a redetermination with respect to the claims.
(c) Qualifications of the QIC's panel members. (1) Members of a QIC's panel who conduct reconsiderations must have sufficient medical, legal, and other expertise, including knowledge of the Medicare program.
(2) When a redetermination is made with respect to whether an item or service is reasonable and necessary (section 1862(a)(1)(A) of the Act), the QIC designates a panel of physicians or other appropriate health care professionals to consider the facts and circumstances of the redetermination.
(3) Where a claim pertains to the furnishing of treatment by a physician, or the provision of items or services by a physician, a reviewing professional must be a physician.
(d) Disqualification of a QIC panel member. No physician or health care professional employed by or otherwise working for a QIC may review determinations regarding—
(1) Health care services furnished to a patient if that physician or health care professional was directly responsible for furnishing those services; or
(2) Health care services provided in or by an institution, organization, or agency, if that physician or health care professional or any member of the physician's family or health care professional's family has, directly or indirectly, a significant financial interest in that institution, organization, or agency (see the term family member as defined in § 405.902).
§ 405.970   Timeframe for making a reconsideration following a contractor redetermination.
(a) General rule. Within 60 calendar days of the date the QIC receives a timely filed request for reconsideration following a contractor redetermination or any additional time provided by paragraph (b) of this section, the QIC mails, or otherwise transmits to the parties at their last known addresses, written notice of—
(1) The reconsideration;
(2) Its inability to complete its review within 60 calendar days in accordance with paragraphs (c) through (e) of this section; or
(3) Dismissal.
(b) Exceptions. (1) If a QIC grants an appellant's request for an extension of the 180 calendar day filing deadline made in accordance with § 405.962(b), the QIC's 60 calendar day decision-making timeframe begins on the date the QIC receives the late filed request for reconsideration following a contractor redetermination, or when the request for an extension that meets the requirements of § 405.962(b) is granted, whichever is later.
(2) If a QIC receives timely requests for reconsideration following a contractor redetermination from multiple parties, consistent with § 405.964(c), the QIC must issue a reconsideration, notice that it cannot complete its review, or dismissal within 60 calendar days for each submission of the latest filed request.
(3) Each time a party submits additional evidence after the request for reconsideration following a contractor redetermination is filed, the QIC's 60 calendar day decisionmaking timeframe is extended by up to 14 calendar days for each submission, consistent with § 405.966(b).
(c) Responsibilities of the QIC. Within 60 calendar days of receiving a request for a reconsideration following a contractor redetermination, or any additional time provided for under paragraph (b) of this section, a QIC must take one of the following actions:
(1) Notify all parties of its reconsideration, consistent with § 405.976.
(2) Notify the parties that it cannot complete the reconsideration by the deadline specified in paragraph (b) of this section and offer the appellant the opportunity to escalate the appeal to OMHA. The QIC continues to process the reconsideration unless it receives a written request from the appellant to escalate the case to OMHA after the adjudication period has expired.
(d) Responsibilities of the appellant. If an appellant wishes to exercise the option of escalating the case to OMHA, the appellant must notify the QIC in writing.
(e) Actions following appellant's notice. (1) If the appellant fails to notify the QIC, or notifies the QIC that the appellant does not choose to escalate the case, the QIC completes its reconsideration following a contractor redetermination and notifies the appellant of its action consistent with § 405.972 or § 405.976.
(2) If the appellant notifies the QIC that the appellant wishes to escalate the case, the QIC must take one of the following actions within 5 calendar days of receipt of the notice or 5 calendar days from the end of the applicable adjudication period under paragraph (a) or (b) of this section:
(i) Complete its reconsideration following a contractor redetermination and notify all parties of its decision consistent with § 405.972 or § 405.976.
(ii) Acknowledge the escalation notice in writing and forward the case file to OMHA.
§ 405.972   Withdrawal or dismissal of a request for reconsideration or review of a contractor's dismissal of a request for redetermination.
(a) Withdrawing a request. An appellant that files a request for reconsideration may withdraw its request by filing a written and signed request for withdrawal. The request for withdrawal must—
(1) Contain a clear statement that the appellant is withdrawing the request for reconsideration and does not intend to proceed further with the appeal.
(2) Be received in the QIC's mailroom before the reconsideration is issued.
(b) Dismissing a request. A QIC dismisses a reconsideration request, either entirely or as to any stated issue, under any of the following circumstances:
(1) When the person or entity requesting reconsideration is not a proper party under § 405.906(b) or does not otherwise have a right to a reconsideration under section 1869(b) of the Act;
(2) When the QIC determines that the party failed to make out a valid request for reconsideration that substantially complies with § 405.964(a) and (b);
(3) When the party fails to file the reconsideration request in accordance with the timeframes established in § 405.962, or fails to file the request for review of a contractor's dismissal of a redetermination request in accordance with the timeframes established in § 405.974(b)(1);
(4) When a beneficiary or the beneficiary's representative files a request for reconsideration, but the beneficiary dies while the request is pending, and all of the following criteria apply:
(i) The beneficiary's surviving spouse or estate has no remaining financial interest in the case. In deciding this issue, the QIC considers if the surviving spouse or estate remains liable for the services for which payment was denied or a Medicare contractor held the beneficiary liable for subsequent similar services under the limitation on liability provisions based on the denial of payment for services at issue;
(ii) No other individual or entity with a financial interest in the case wishes to pursue the appeal; and
(iii) No other party to the redetermination filed a valid and timely request for reconsideration under §§ 405.962 and 405.964.
(5) When a party filing for the reconsideration submits a written request of withdrawal to the QIC and satisfies the criteria set forth in paragraph (a) of this section before the reconsideration has been issued; or
(6) When the contractor has not issued a redetermination on the initial determination for which a reconsideration is sought.
(c) Notice of dismissal. A QIC mails or otherwise transmits written notice of the dismissal of the reconsideration request to the parties at their last known addresses. The notice states that there is a right to request that the contractor vacate the dismissal action. The appeal will proceed with respect to any other parties that have filed a timely request for reconsideration.
(d) Vacating a dismissal. If good and sufficient cause is established, a QIC may vacate its dismissal of a request for reconsideration within 180 calendar days of the date of the notice of dismissal.
(e) Effect of dismissal. The dismissal of a request for reconsideration is binding unless it is modified or reversed by an ALJ or attorney adjudicator under § 405.1004 or vacated under paragraph (d) of this section. The dismissal of a request for review of a contractor's dismissal of a redetermination request is binding and not subject to further review unless vacated under paragraph (d) of this section.
§ 405.974   Reconsideration and review of a contractor's dismissal of a request for redetermination.
(a) Reconsideration of a contractor determination. Except as provided in § 405.972, upon the basis of the evidence of record, the QIC must issue a reconsideration affirming or reversing, in whole or in part, the initial determination, including the redetermination, in question.
(b) Review of a contractor's dismissal of a redetermination request. (1) A party to a contractor's dismissal of a request for redetermination has a right to have the dismissal reviewed by a QIC, if the party files a written request for review of the dismissal with the QIC within 60 calendar days after receipt of the contractor's notice of dismissal.
(i) For purposes of this section, the date of receipt of the contractor's notice of dismissal is presumed to be 5 calendar days after the date of the notice of dismissal, unless there is evidence to the contrary.
(ii) For purposes of meeting the 60 calendar day filing deadline, the request is considered as filed on the date it is received by the QIC indicated on the notice of dismissal.
(2) If the QIC determines that the contractor's dismissal was in error, it vacates the dismissal and remands the case to the contractor for a redetermination.
(3) A QIC's review of a contractor's dismissal of a redetermination request is binding and not subject to further review.
§ 405.976   Notice of a reconsideration.
(a) Notification to parties —(1) General rules. (i) Written notice of the reconsideration must be mailed or otherwise transmitted to all parties at their last known addresses, in accordance with the timeframes established in § 405.970(a) or (b).
(ii) The notice must be written in a manner reasonably calculated to be understood by a beneficiary.
(iii) The QIC must promptly notify the entity responsible for payment of claims under Part A or Part B of its reconsideration. If the reconsideration results in issuance of supplemental payment to a provider or supplier, the Medicare contractor must also issue an electronic or paper RA notice to the provider or supplier.
(2) Overpayment cases involving multiple beneficiaries who have no liability. In an overpayment case involving multiple beneficiaries who have no liability, the QIC may issue a written notice only to the appellant.
(b) Content of the notice. The reconsideration must be in writing and contain—
(1) A clear statement indicating whether the reconsideration is favorable or unfavorable;
(2) A summary of the facts, including as appropriate, a summary of the clinical or scientific evidence used in making the reconsideration;
(3) An explanation of how pertinent laws, regulations, coverage rules, and CMS policies, apply to the facts of the case, including, where applicable, the rationale for declining to follow an LCD, LMRP, or CMS program guidance;
(4) In the case of a determination on whether an item or service is reasonable or necessary under section 1862(a)(1)(A) of the Act, an explanation of the medical and scientific rationale for the decision;
(5) A summary of the rationale for the reconsideration.
(i) If the notice of redetermination indicated that specific documentation should be submitted with the reconsideration request, and the documentation was not submitted with the request for reconsideration, the summary must indicate how the missing documentation affected the reconsideration; and
(ii) The summary must also specify that, consistent with §§ 405.956(b)(8) and 405.966(b), all evidence, including evidence requested in the notice of redetermination, that is not submitted prior to the issuance of the reconsideration will not be considered at the OMHA level, unless the appellant demonstrates good cause as to why the evidence was not provided prior to the issuance of the QIC's reconsideration. This requirement does not apply to beneficiaries, unless the beneficiary is represented by a provider or supplier or to State Medicaid Agencies;
(6) Information concerning to the parties' right to an ALJ hearing, including the applicable amount in controversy requirement and aggregation provisions;
(7) A statement of whether the amount in controversy is estimated to meet or not meet the amount required for an ALJ hearing, if—
(i) The request for reconsideration was filed by a beneficiary who is not represented by a provider, supplier, or Medicaid State agency; and
(ii) The reconsideration decision is partially or fully unfavorable.
(8) A description of the procedures that a party must follow in order to obtain an ALJ hearing of an expedited reconsideration, including the time frame under which a request for an ALJ hearing must be filed;
(9) If appropriate, advice as to the requirements for use of the expedited access to judicial review process set forth in § 405.990;
(10) The procedures for obtaining additional information concerning the reconsideration, such as specific provisions of the policy, manual, or regulation used in making the reconsideration; and
(11) Any other requirements specified by CMS.
§ 405.978   Effect of a reconsideration.
A reconsideration is binding on all parties, unless—
(a) An ALJ or attorney adjudicator decision is issued in accordance to a request for an ALJ hearing made in accordance with § 405.1014;
(b) A review entity issues a decision in accordance to a request for expedited access to judicial review under § 405.990; or
(c) The reconsideration is revised as a result of a reopening in accordance with § 405.980.
§ 405.980   Reopening of initial determinations, redeterminations, reconsiderations, decisions, and reviews.
(a) General rules. (1) A reopening is a remedial action taken to change a binding determination or decision that resulted in either an overpayment or underpayment, even though the binding determination or decision may have been correct at the time it was made based on the evidence of record. That action may be taken by—
(i) A contractor to revise the initial determination or redetermination;
(ii) A QIC to revise the reconsideration;
(iii) An ALJ or attorney adjudicator to revise his or her decision; or
(iv) The Council to revise the ALJ or attorney adjudicator decision, or its review decision.
(2) If a contractor issues a denial of a claim because it did not receive requested documentation during medical review and the party subsequently requests a redetermination, the contractor must process the request as a reopening.
(3) Notwithstanding paragraph (a)(4) of this section, a contractor must process clerical errors (which includes minor errors and omissions) as reopenings, instead of as redeterminations as specified in § 405.940. If the contractor receives a request for reopening and disagrees that the issue is a clerical error, the contractor must dismiss the reopening request and advise the party of any appeal rights, provided the timeframe to request an appeal on the original denial has not expired. For purposes of this section, clerical error includes human or mechanical errors on the part of the party or the contractor such as—
(i) Mathematical or computational mistakes;
(ii) Inaccurate data entry; or
(iii) Denials of claims as duplicates.
(4) When a party has filed a valid request for an appeal of an initial determination, redetermination, reconsideration, ALJ or attorney adjudicator decision, or Council review, no adjudicator has jurisdiction to reopen an issue on a claim that is under appeal until all appeal rights for that issue are exhausted. Once the appeal rights for the issue have been exhausted, the contractor, QIC, ALJ or attorney adjudicator, or Council may reopen as set forth in this section.
(5) The contractor's, QIC's, ALJ's or attorney adjudicator's, or Council's decision on whether to reopen is binding and not subject to appeal.
(6) A determination under the Medicare secondary payer provisions of section 1862(b) of the Act that Medicare has an MSP recovery claim for services or items that were already reimbursed by the Medicare program is not a reopening, except where the recovery claim is based upon a provider's or supplier's failure to demonstrate that it filed a proper claim as defined in part 411 of this chapter.
(b) Time frames and requirements for reopening initial determinations and redeterminations initiated by a contractor. A contractor may reopen an initial determination or redetermination on its own motion—
(1) Within 1 year from the date of the initial determination or redetermination for any reason.
(2) Within 4 years from the date of the initial determination or redetermination for good cause as defined in § 405.986.
(3) At any time if there exists reliable evidence as defined in § 405.902 that the initial determination was procured by fraud or similar fault as defined in § 405.902.
(4) At anytime if the initial determination is unfavorable, in whole or in part, to the party thereto, but only for the purpose of correcting a clerical error on which that determination was based.
(5) At any time to effectuate a decision issued under the coverage appeals process.
(c) Time frame and requirements for reopening initial determinations and redeterminations requested by a party. (1) A party may request that a contractor reopen its initial determination or redetermination within 1 year from the date of the initial determination or redetermination for any reason.
(2) A party may request that a contractor reopen its initial determination or redetermination within 4 years from the date of the initial determination or redetermination for good cause in accordance with § 405.986.
(3) A party may request that a contractor reopen its initial determination at any time if the initial determination is unfavorable, in whole or in part, to the party thereto, but only for the purpose of correcting a clerical error on which that determination was based. Third party payer error does not constitute clerical error. See § 405.986(c).
(4) A party may request that a contractor reopen an initial determination for the purpose of reporting and returning an overpayment under § 401.305 of this chapter.
(d) Time frame and requirements for reopening reconsiderations, decisions and reviews initiated by a QIC, ALJ or attorney adjudicator, or the Council. (1) A QIC may reopen its reconsideration on its own motion within 180 calendar days from the date of the reconsideration for good cause in accordance with § 405.986. If the QIC's reconsideration was procured by fraud or similar fault, then the QIC may reopen at any time.
(2) An ALJ or attorney adjudicator may reopen his or her decision, or the Council may reopen an ALJ or attorney adjudicator decision on its own motion within 180 calendar days from the date of the decision for good cause in accordance with § 405.986. If the decision was procured by fraud or similar fault, then the ALJ or attorney adjudicator may reopen his or her decision, or the Council may reopen an ALJ or attorney adjudicator decision, at any time.
(3) The Council may reopen its review decision on its own motion within 180 calendar days from the date of the review decision for good cause in accordance with § 405.986. If the Council's decision was procured by fraud or similar fault, then the Council may reopen at any time.
(e) Time frames and requirements for reopening reconsiderations, decisions, and reviews requested by a party. (1) A party to a reconsideration may request that a QIC reopen its reconsideration within 180 calendar days from the date of the reconsideration for good cause in accordance with § 405.986.
(2) A party to an ALJ or attorney adjudicator decision may request that an ALJ or attorney adjudicator reopen his or her decision, or the Council reopen an ALJ or attorney adjudicator decision, within 180 calendar days from the date of the decision for good cause in accordance with § 405.986.
(3) A party to a Council review may request that the Council reopen its decision within 180 calendar days from the date of the review decision for good cause in accordance with § 405.986.
§ 405.982   Notice of a revised determination or decision.
(a) When adjudicators initiate reopenings. When any determination or decision is reopened and revised as provided in § 405.980, the contractor, QIC, ALJ or attorney adjudicator, or the Council must mail its revised determination or decision to the parties to that determination or decision at their last known address. In the case of a full or partial reversal resulting in issuance of a payment to a provider or supplier, a revised electronic or paper remittance advice notice must be issued by the Medicare contractor. An adverse revised determination or decision must state the rationale and basis for the reopening and revision and any right to appeal.
(b) Reopenings initiated at the request of a party. The contractor, QIC, ALJ or attorney adjudicator, or the Council must mail its revised determination or decision to the parties to that determination or decision at their last known address. In the case of a full or partial reversal resulting in issuance of a payment to a provider or supplier, a revised electronic or paper remittance advice notice must be issued by the Medicare contractor. An adverse revised determination or decision must state the rationale and basis for the reopening and revision and any right to appeal.
§ 405.984   Effect of a revised determination or decision.
(a) Initial determinations. The revision of an initial determination is binding upon all parties unless a party files a written request for a redetermination that is accepted and processed in accordance with § 405.940 through § 405.958.
(b) Redeterminations. The revision of a redetermination is binding upon all parties unless a party files a written request for a QIC reconsideration that is accepted and processed in accordance with § 405.960 through § 405.978.
(c) Reconsiderations. The revision of a reconsideration is binding upon all parties unless a party files a written request for an ALJ hearing that is accepted and processed in accordance with § 405.1000 through § 405.1063.
(d) ALJ or attorney adjudicator decisions. The revision of an ALJ or attorney adjudicator decision is binding upon all parties unless a party files a written request for a Council review that is accepted and processed in accordance with § 405.1100 through § 405.1130.
(e) Council review. The revision of a Council review is binding upon all parties unless a party files a civil action in which a Federal district court accepts jurisdiction and issues a decision.
(f) Appeal of only the portion of the determination or decision revised by the reopening. Only the portion of the initial determination, redetermination, reconsideration, or hearing decision revised by the reopening may be subsequently appealed.
(g) Effect of a revised determination or decision. A revised determination or decision is binding unless it is appealed or otherwise reopened.
§ 405.986   Good cause for reopening.
(a) Establishing good cause for reopening. Good cause may be established when—
(1) There is new and material evidence that—
(i) Was not available or known at the time of the determination or decision; and
(ii) May result in a different conclusion; or
(2) The evidence that was considered in making the determination or decision clearly shows on its face that an obvious error was made at the time of the determination or decision.
(b) Change in substantive law or interpretative policy. A change of legal interpretation or policy by CMS in a regulation, CMS ruling, or CMS general instruction, or a change in legal interpretation or policy by SSA in a regulation, SSA ruling, or SSA general instruction in entitlement appeals, whether made in response to judicial precedent or otherwise, is not a basis for reopening a determination or hearing decision under this section. This provision does not preclude contractors from conducting reopenings to effectuate coverage decisions issued under the authority granted by section 1869(f) of the Act.
(c) Third party payer error. A request to reopen a claim based upon a third party payer's error in making a primary payment determination when Medicare processed the claim in accordance with the information in its system of records or on the claim form does not constitute good cause for reopening.
§ 405.990   Expedited access to judicial review.
(a) Process for expedited access to judicial review. (1) For purposes of this section, a “review entity” means an entity of up to three reviewers who are ALJs or members of the Departmental Appeals Board (DAB), as determined by the Secretary.
(2) In order to obtain expedited access to judicial review (EAJR), a review entity must certify that the Council does not have the authority to decide the question of law or regulation relevant to the matters in dispute and that there is no material issue of fact in dispute.
(3) A party may make a request for EAJR only once with respect to a question of law or regulation for a specific matter in dispute in an appeal.
(b) Conditions for making the expedited appeals request. (1) A party may request EAJR in place of an ALJ hearing or Council review if the following conditions are met:
(i) A QIC has made a reconsideration determination and the party has filed a request for—
(A) An ALJ hearing in accordance with § 405.1002 and a decision, dismissal order, or remand order of the ALJ or attorney adjudicator has not been issued;
(B) Council review in accordance with § 405.1102 and a final decision, dismissal order, or remand order of the Council has not been issued; or
(ii) The appeal has been escalated from the QIC to OMHA for an ALJ hearing after the period described in § 405.970(a) and § 405.970(b) has expired, and the QIC does not issue a decision or dismissal order within the timeframe described in § 405.970(e).
(2) The requestor is a party, as defined in paragraph (e) of this section.
(3) The amount remaining in controversy meets the requirements of § 405.1006(b) or (c).
(4) If there is more than one party to the reconsideration, hearing, or Council review, each party concurs, in writing, with the request for the EAJR.
(5) There are no material issues of fact in dispute.
(c) Content of the request for EAJR. The request for EAJR must—
(1) Allege that there are no material issues of fact in dispute and identify the facts that the requestor considers material and that are not disputed; and
(2) Assert that the only factor precluding a decision favorable to the requestor is—
(i) A statutory provision that is unconstitutional, or a provision of a regulation or national coverage determination and specify the statutory provision that the requestor considers unconstitutional or the provision of a regulation or a national coverage determination that the requestor considers invalid, or
(ii) A CMS Ruling that the requester considers invalid;
(3) Include a copy of any QIC reconsideration and of any ALJ or attorney adjudicator decision that the requester has received;
(4) If any QIC reconsideration or ALJ or attorney adjudicator decision was based on facts that the requestor is disputing, state why the requestor considers those facts to be immaterial; and
(5) If any QIC reconsideration or ALJ or attorney adjudicator decision was based on a provision of a law, regulation, national coverage determination or CMS Ruling in addition to the one the requestor considers unconstitutional or invalid, a statement as to why further administrative review of how that provision applies to the facts is not necessary.
(d) Place and time for an EAJR request —(1) Method and place for filing request. The requestor may—
(i) If a request for ALJ hearing or Council review is not pending, file a written EAJR request with the HHS Departmental Appeals Board with his or her request for an ALJ hearing or Council review; or
(ii) If an appeal is already pending for an ALJ hearing or otherwise before OMHA, or the Council, file a written EAJR request with the HHS Departmental Appeals Board.
(2) Time of filing request. The party may file a request for the EAJR—
(i) If the party has requested a hearing, at any time before receipt of the notice of the ALJ's or attorney adjudicator's decision; or
(ii) If the party has requested Council review, at any time before receipt of notice of the Council's decision.
(e) Parties to the EAJR. The parties to the EAJR are the persons or entities who were parties to the QIC's reconsideration determination and, if applicable, to the ALJ hearing.
(f) Determination on EAJR request. (1) The review entity described in paragraph (a) of this section will determine whether the request for EAJR meets all of the requirements of paragraphs (b), (c), and (d) of this section.
(2) Within 60 calendar days after the date the review entity receives a request and accompanying documents and materials meeting the conditions in paragraphs (b), (c), and (d) of this section, the review entity will issue either a certification in accordance to paragraph (g) of this section or a denial of the request.
(3) A determination by the review entity either certifying that the requirements for EAJR are met pursuant to paragraph (g) of this section or denying the request is not subject to review by the Secretary.
(4) If the review entity fails to make a determination within the time frame specified in paragraph (f)(2) of this section, then the requestor may bring a civil action in Federal district court within 60 calendar days of the end of the time frame.
(g) Certification by the review entity. If a party meets the requirements for the EAJR, the review entity certifies in writing that—
(1) The material facts involved in the claim are not in dispute;
(2) Except as indicated in paragraph (g)(3) of this section, the Secretary's interpretation of the law is not in dispute;
(3) The sole issue(s) in dispute is the constitutionality of a statutory provision, or the validity of a provision of a regulation, CMS Ruling, or national coverage determination;
(4) But for the provision challenged, the requestor would receive a favorable decision on the ultimate issue (such as whether a claim should be paid); and
(5) The certification by the review entity is the Secretary's final action for purposes of seeking expedited judicial review.
(h) Effect of certification by the review entity. If an EAJR request results in a certification described in paragraph (g) of this section—
(1) The party that requested the EAJR is considered to have waived any right to completion of the remaining steps of the administrative appeals process regarding the matter certified.
(2) The requestor has 60 calendar days, beginning on the date of the review entity's certification within which to bring a civil action in Federal district court.
(3) The requestor must satisfy the requirements for venue under section 1869(b)(2)(C)(iii) of the Act, as well as the requirements for filing a civil action in a Federal district court under § 405.1136(a) and § 405.1136(c) through § 405.1136(f).
(i) Rejection of EAJR. (1) If a request for EAJR does not meet all the conditions set out in paragraphs (b), (c) and (d) of this section, or if the review entity does not certify a request for EAJR, the review entity advises in writing all parties that the request has been denied, and forwards the request to OMHA or the Council, which will treat it as a request for hearing or for Council review, as appropriate.
(2) Whenever a review entity forwards a rejected EAJR request to OMHA or the Council, the appeal is considered timely filed, and if an adjudication time frame applies to the appeal, the adjudication time frame begins on the day the request is received by OMHA or the Council from the review entity.
(j) Interest on any amounts in controversy. (1) If a provider or supplier is granted judicial review in accordance with this section, the amount in controversy, if any, is subject to annual interest beginning on the first day of the first month beginning after the 60 calendar day period as determined in accordance with paragraphs (f)(4) or (h)(2) of this section, as applicable.
(2) The interest is awarded by the reviewing court and payable to a prevailing party.
(3) The rate of interest is equal to the rate of interest applicable to obligations issued for purchase by the Federal Supplementary Medical Insurance Trust Fund for the month in which the civil action authorized under this subpart is commenced.
(4) No interest awarded in accordance with this paragraph shall be income or cost for purposes of determining reimbursement due to providers or suppliers under Medicare.
§ 405.1000   Hearing before an ALJ and decision by an ALJ or attorney adjudicator: General rule.
(a) If a party is dissatisfied with a QIC's reconsideration, or if the adjudication period specified in § 405.970 for the QIC to complete its reconsideration has elapsed, the party may request a hearing before an ALJ.
(b) A hearing before an ALJ may be conducted in-person, by video-teleconference (VTC), or by telephone. At the hearing, the parties may submit evidence (subject to the restrictions in § 405.1018 and § 405.1028), examine the evidence used in making the determination under review, and present and/or question witnesses.
(c) In some circumstances, CMS or its contractor may participate in the proceedings under § 405.1010, or join the hearing before an ALJ as a party under § 405.1012.
(d) The ALJ or attorney adjudicator conducts a de novo review and issues a decision based on the administrative record, including, for an ALJ, any hearing record.
(e) If all parties who are due a notice of hearing in accordance with § 405.1020(c) waive their right to appear at the hearing in person or by telephone or video-teleconference, the ALJ or an attorney adjudicator may make a decision based on the evidence that is in the file and any new evidence that is submitted for consideration.
(f) The ALJ may require the parties to participate in a hearing if it is necessary to decide the case. If the ALJ determines that it is necessary to obtain testimony from a non-party, he or she may hold a hearing to obtain that testimony, even if all of the parties who are entitled to a notice of hearing in accordance with § 405.1020(c) have waived the right to appear. In that event, however, the ALJ will give the parties the opportunity to appear when the testimony is given, but may hold the hearing even if none of the parties decide to appear.
(g) An ALJ or attorney adjudicator may also issue a decision on the record on his or her own initiative if the evidence in the administrative record supports a fully favorable finding for the appellant, and no other party to the appeal is liable for the claims at issue, unless CMS or a contractor has elected to be a party to the hearing in accordance with § 405.1012.
(h) If more than one party timely files a request for hearing on the same claim before a decision is made on the first timely filed request, the requests are consolidated into one proceeding and record, and one decision, dismissal, or remand is issued.
§ 405.1002   Right to an ALJ hearing.
(a) A party to a QIC reconsideration has a right to a hearing before an ALJ if—
(1) The party files a written request for an ALJ hearing within 60 calendar days after receipt of the notice of the QIC's reconsideration.
(2) The party meets the amount in controversy requirements of § 405.1006.
(3) For purposes of this section, the date of receipt of the reconsideration is presumed to be 5 calendar days after the date of the reconsideration, unless there is evidence to the contrary.
(4) For purposes of meeting the 60 calendar day filing deadline, the request is considered as filed on the date it is received by the office specified in the QIC's reconsideration.
(b) A party who files a timely appeal before a QIC and whose appeal continues to be pending before a QIC at the end of the period described in § 405.970 has a right to a hearing before an ALJ if—
(1) The party files a written request with the QIC to escalate the appeal for a hearing before an ALJ after the period described in § 405.970(a) and (b) has expired and the party files the request in accordance with § 405.970(d);
(2) The QIC does not issue a decision or dismissal order within 5 calendar days of receiving the request for escalation in accordance with § 405.970(e)(2); and
(3) The party has an amount remaining in controversy specified in § 405.1006.
§ 405.1004   Right to a review of QIC notice of dismissal.
(a) A party to a QIC's dismissal of a request for reconsideration has a right to have the dismissal reviewed by an ALJ or attorney adjudicator if—
(1) The party files a written request for review within 60 calendar days after receipt of the notice of the QIC's dismissal.
(2) The party meets the amount in controversy requirements of § 405.1006.
(3) For purposes of this section, the date of receipt of the QIC's dismissal is presumed to be 5 calendar days after the date of the dismissal notice, unless there is evidence to the contrary.
(4) For purposes of meeting the 60 calendar day filing deadline, the request is considered as filed on the date it is received by the office specified in the QIC's dismissal.
(b) If the ALJ or attorney adjudicator determines that the QIC's dismissal was in error, he or she vacates the dismissal and remands the case to the QIC for a reconsideration in accordance with § 405.1056.
(c) If the ALJ or attorney adjudicator affirms the QIC's dismissal of a reconsideration request, he or she issues a notice of decision affirming the QIC dismissal in accordance with § 405.1046(b).
(d) The ALJ or attorney adjudicator may dismiss the request for review of a QIC's dismissal in accordance with § 405.1052(b).
§ 405.1006   Amount in controversy required for an ALJ hearing and judicial review.
(a) Definitions. For the purposes of aggregating claims to meet the amount in controversy requirement for an ALJ hearing or judicial review:
(1) “Common issues of law and fact” means the claims sought to be aggregated are denied, or payment is reduced, for similar reasons and arise from a similar fact pattern material to the reason the claims are denied or payment is reduced.
(2) “Delivery of similar or related services” means like or coordinated services or items provided to one or more beneficiaries.
(b) ALJ review. To be entitled to a hearing before an ALJ, the party must meet the amount in controversy requirements of this section.
(1) For ALJ hearing requests, the required amount remaining in controversy must be $100 increased by the percentage increase in the medical care component of the consumer price index for all urban consumers (U.S. city average) as measured from July 2003 to the July preceding the current year involved.
(2) If the figure in paragraph (b)(1) of this section is not a multiple of $10, then it is rounded to the nearest multiple of $10. The Secretary will publish changes to the amount in controversy requirement in the Federal Register when necessary.
(c) Judicial review. To be entitled to judicial review, a party must meet the amount in controversy requirements of this subpart at the time it requests judicial review.
(1) For review requests, the required amount remaining in controversy must be $1,000 or more, adjusted as specified in paragraphs (b)(1) and (b)(2) of this section.
(2) [Reserved]
(d) Calculating the amount remaining in controversy —(1) In general. The amount remaining in controversy is computed as the actual amount charged the individual for the items and services in the disputed claim, reduced by—
(i) Any Medicare payments already made or awarded for the items or services; and
(ii) Any deductible and/or coinsurance amounts that may be collected for the items or services.
(2) Limitation on liability. Notwithstanding paragraph (d)(1) of this section, when payment is made for items or services under section 1879 of the Act or § 411.400 of this chapter, or the liability of the beneficiary for those services is limited under § 411.402 of this chapter, the amount in controversy is computed as the amount the beneficiary would have been charged for the items or services in question if those expenses were not paid under § 411.400 of this chapter or if that liability was not limited under § 411.402 of this chapter, reduced by any deductible and/or coinsurance amounts that may be collected for the items or services.
(3) Item or service terminations. When a matter involves a provider or supplier termination of Medicare-covered items or services that is disputed by a beneficiary, and the beneficiary did not elect to continue receiving the items or services, the amount in controversy is calculated in accordance with paragraph (d)(1) of this section, except that the amount charged to the individual and any deductible and coinsurance that may be collected for the items or services are calculated using the amount the beneficiary would have been charged if the beneficiary had received the items or services the beneficiary asserts should have been covered based on the beneficiary's current condition, and Medicare payment were not made for the items or services.
(4) Overpayments. Notwithstanding paragraph (d)(1) of this section, when an appeal involves an identified overpayment, the amount in controversy is the amount of the overpayment specified in the demand letter, or the amount of the revised overpayment if the amount originally demanded changes as a result of a subsequent determination or appeal, for the items or services in the disputed claim. When an appeal involves an estimated overpayment amount determined through the use of statistical sampling and extrapolation, the amount in controversy is the total amount of the estimated overpayment determined through extrapolation, as specified in the demand letter, or as subsequently revised.
(5) Coinsurance and deductible challenges. Notwithstanding paragraph (d)(1) of this section, for appeals filed by beneficiaries challenging only the computation of a coinsurance amount or the amount of a remaining deductible, the amount in controversy is the difference between the amount of the coinsurance or remaining deductible, as determined by the contractor, and the amount of the coinsurance or remaining deductible the beneficiary believes is correct.
(6) Fee schedule or contractor price challenges. Notwithstanding paragraph (d)(1) of this section, for appeals of claims where the allowable amount has been paid in full and the appellant is challenging only the validity of the allowable amount, as reflected on the published fee schedule or in the published contractor-priced amount applicable to the items or services in the disputed claim, the amount in controversy is the difference between the amount the appellant argues should have been the allowable amount for the items or services in the disputed claim in the applicable jurisdiction and place of service, and the published allowable amount for the items or services.
(e) Aggregating claims to meet the amount in controversy —(1) Aggregating claims in appeals of QIC reconsiderations for an ALJ hearing. Either an individual appellant or multiple appellants may aggregate two or more claims to meet the amount in controversy for an ALJ hearing if—
(i) The claims were previously reconsidered by a QIC;
(ii) The appellant(s) requests aggregation of claims appealed in the same request for ALJ hearing, or in multiple requests for an ALJ hearing filed with the same request for aggregation, and the request is filed within 60 calendar days after receipt of all of the reconsiderations being appealed; and
(iii) The claims that a single appellant seeks to aggregate involve the delivery of similar or related services, or the claims that multiple appellants seek to aggregate involve common issues of law and fact, as determined by an ALJ or attorney adjudicator. Only an ALJ may determine the claims that a single appellant seeks to aggregate do not involve the delivery of similar or related services, or the claims that multiple appellants seek to aggregate do not involve common issues of law and fact. Part A and Part B claims may be combined to meet the amount in controversy requirements.
(2) Aggregating claims that are escalated from the QIC level for an ALJ hearing. Either an individual appellant or multiple appellants may aggregate two or more claims to meet the amount in controversy for an ALJ hearing if—
(i) The claims were pending before the QIC in conjunction with the same request for reconsideration;
(ii) The appellant(s) requests aggregation of the claims for an ALJ hearing in the same request for escalation; and
(iii) The claims that a single appellant seeks to aggregate involve the delivery of similar or related services, or the claims that multiple appellants seek to aggregate involve common issues of law and fact, as determined by an ALJ or attorney adjudicator. Only an ALJ may determine the claims that a single appellant seeks to aggregate do not involve the delivery of similar or related services, or the claims that multiple appellants seek to aggregate do not involve common issues of law and fact. Part A and Part B claims may be combined to meet the amount in controversy requirements.
(f) Content of request for aggregation. When an appellant(s) seeks to aggregate claims in a request for an ALJ hearing, the appellant(s) must—
(1) Specify all of the claims the appellant(s) seeks to aggregate; and
(2) State why the appellant(s) believes that the claims involve common issues of law and fact or delivery of similar or related services.
§ 405.1008   Parties to the proceedings on a request for an ALJ hearing.
The party who filed the request for hearing and all other parties to the reconsideration are parties to the proceedings on a request for an ALJ hearing. In addition, a representative of CMS or its contractor may be a party under the circumstances described in § 405.1012.
§ 405.1010   When CMS or its contractors may participate in the proceedings on a request for an ALJ hearing.
(a) When CMS or a contractor can participate. (1) CMS or its contractors may elect to participate in the proceedings on a request for an ALJ hearing upon filing a notice of intent to participate in accordance with paragraph (b) of this section.
(2) An ALJ may request, but may not require, CMS and/or one or more of its contractors to participate in any proceedings before the ALJ, including the oral hearing, if any. The ALJ cannot draw any adverse inferences if CMS or the contractor decides not to participate in any proceedings before the ALJ, including the hearing.
(b) How an election is made — (1) No notice of hearing. If CMS or a contractor elects to participate before receipt of a notice of hearing, or when a notice of hearing is not required, it must send written notice of its intent to participate to—
(i) The assigned ALJ or attorney adjudicator, or a designee of the Chief ALJ if the request for hearing is not yet assigned to an ALJ or attorney adjudicator; and
(ii) The parties who were sent a copy of the notice of reconsideration or, for escalated requests for reconsideration, any party that filed a request for reconsideration or was found liable for the services at issue subsequent to the initial determination.
(2) Notice of hearing. If CMS or a contractor elects to participate after receipt of a notice of hearing, it must send written notice of its intent to participate to the ALJ and the parties who were sent a copy of the notice of hearing.
(3) Timing of election. CMS or a contractor must send its notice of intent to participate—
(i) If no hearing is scheduled, no later than 30 calendar days after notification that a request for hearing was filed; or
(ii) If a hearing is scheduled, no later than 10 calendar days after receipt of the notice of hearing by the QIC or another contractor designated by CMS to receive the notice of hearing.
(c) Roles and responsibilities of CMS or a contractor as a participant. (1) Subject to paragraphs (d)(1) through (3) of this section, participation may include filing position papers and/or providing testimony to clarify factual or policy issues in a case, but it does not include calling witnesses or cross-examining the witnesses of a party to the hearing.
(2) When CMS or its contractor participates in an ALJ hearing, CMS or its contractor may not be called as a witness during the hearing and is not subject to examination or cross-examination by the parties, except as provided in paragraph (d)(3) of this section. However, the parties may provide testimony to rebut factual or policy statements made by a participant and the ALJ may question the participant about its testimony.
(3) CMS or contractor position papers and written testimony are subject to the following:
(i) Unless the ALJ or attorney adjudicator grants additional time to submit the position paper or written testimony, a position paper or written testimony must be submitted within 14 calendar days of an election to participate if no hearing has been scheduled, or no later than 5 calendar days prior to the hearing if a hearing is scheduled.
(ii) A copy of any position paper or written testimony it submits to OMHA must be sent within the same time frame specified in paragraph (c)(3)(i) of this section to—
(A) The parties that are required to be sent a copy of the notice of intent to participate in accordance with paragraph (b)(1) of this section, if the position paper or written testimony is being submitted before receipt of a notice of hearing for the appeal; or
(B) The parties who were sent a copy of the notice of hearing, if the position paper or written testimony is being submitted after receipt of a notice of hearing for the appeal.
(iii) If CMS or a contractor fails to send a copy of its position paper or written testimony to the parties or fails to submit its position paper or written testimony within the time frames described in this paragraph, the position paper or written testimony will not be considered in deciding the appeal.
(d) Limitation on participating in a hearing. (1) If CMS or a contractor has been made a party to a hearing in accordance with § 405.1012, no entity that elected to be a participant in the proceedings in accordance with this section (or that elected to be a party to the hearing but was made a participant in accordance with § 405.1012(d)(1)) may participate in the oral hearing, but such entity may file a position paper and/or written testimony to clarify factual or policy issues in the case.
(2) If CMS or a contractor did not elect to be a party to a hearing in accordance with § 405.1012 and more than one entity elected to be a participant in the proceedings in accordance with this section, only the first entity to file a response to the notice of hearing as provided under § 405.1020(c) may participate in the oral hearing. Entities that filed a subsequent response to the notice of hearing may not participate in the oral hearing, but may file a position paper and/or written testimony to clarify factual or policy issues in the case.
(3) If CMS or a contractor is precluded from participating in the oral hearing under paragraph (d)(1) or (2) of this section, the ALJ may grant leave to the precluded entity to participate in the oral hearing if the ALJ determines that the entity's participation is necessary for a full examination of the matters at issue. If the ALJ does not grant leave to the precluded entity to participate in the oral hearing, the precluded entity may still be called as a witness by CMS or a contractor that is a party to the hearing in accordance with § 405.1012.
(e) Invalid election. (1) An ALJ or attorney adjudicator may determine that a CMS or contractor election is invalid under this section if the election was not timely filed or the election was not sent to the correct parties.
(2) If an election is determined to be invalid, a written notice must be sent to the entity that submitted the election and the parties who are entitled to receive notice of the election in accordance with this section.
(i) If no hearing is scheduled or the election was submitted after the hearing occurred, the written notice of invalid election must be sent no later than the date the notice of decision, dismissal, or remand is mailed.
(ii) If a hearing is scheduled, the written notice of invalid election must be sent prior to the hearing. If the notice would be sent fewer than 5 calendar days before the hearing is scheduled to occur, oral notice must be provided to the entity that submitted the election, and the written notice must be sent as soon as possible after the oral notice is provided.
§ 405.1012   When CMS or its contractors may be a party to a hearing.
(a) When CMS or a contractor can elect to be a party to a hearing. (1) Unless the request for hearing is filed by an unrepresented beneficiary, and unless otherwise provided in this section, CMS or one of its contractors may elect to be a party to the hearing upon filing a notice of intent to be a party to the hearing in accordance with paragraph (b) of this section no later than 10 calendar days after receipt of the notice of hearing by the QIC or another contractor designated by CMS to receive the notice of hearing.
(2) Unless the request for hearing is filed by an unrepresented beneficiary, an ALJ may request, but may not require, CMS and/or one or more of its contractors to be a party to the hearing. The ALJ cannot draw any adverse inferences if CMS or the contractor decides not to be a party to the hearing.
(b) How an election is made. If CMS or a contractor elects to be a party to the hearing, it must send written notice to the ALJ and the parties who were sent a copy of the notice of hearing of its intent to be a party to the hearing.
(c) Roles and responsibilities of CMS or a contractor as a party. (1) As a party, CMS or a contractor may file position papers, submit evidence, provide testimony to clarify factual or policy issues, call witnesses or cross-examine the witnesses of other parties.
(2) CMS or contractor position papers, written testimony, and evidentiary submissions are subject to the following:
(i) Any position paper, written testimony, and/or evidence must be submitted no later than 5 calendar days prior to the hearing unless the ALJ grants additional time to submit the position paper, written testimony, and/or evidence.
(ii) A copy of any position paper, written testimony, and/or evidence it submits to OMHA must be sent within the same time frame specified in paragraph (c)(2)(i) of this section to the parties who were sent a copy of the notice of hearing.
(iii) If CMS or a contractor fails to send a copy of its position paper, written testimony, and/or evidence to the parties or fails to submit its position paper, written testimony, and/or evidence within the time frames described in this section, the position paper, written testimony, and/or evidence will not be considered in deciding the appeal.
(d) Limitation on participating in a hearing. (1) If CMS and one or more contractors, or multiple contractors, file an election to be a party to the hearing, the first entity to file its election after the notice of hearing is issued is made a party to the hearing and the other entities are made participants in the proceedings under § 405.1010, subject to § 405.1010(d)(1) and (3), unless the ALJ grants leave to an entity to also be a party to the hearing in accordance with paragraph (d)(2) of this section.
(2) If CMS or a contractor filed an election to be a party in accordance with this section but is precluded from being made a party under paragraph (d)(1) of this section, the ALJ may grant leave to be a party to the hearing if the ALJ determines that the entity's participation as a party is necessary for a full examination of the matters at issue.
(e) Invalid election. (1) An ALJ may determine that a CMS or contractor election is invalid under this section if the request for hearing was filed by an unrepresented beneficiary, the election was not timely, the election was not sent to the correct parties, or CMS or a contractor had already filed an election to be a party to the hearing and the ALJ did not determine that the entity's participation as a party is necessary for a full examination of the matters at issue.
(2) If an election is determined to be invalid, a written notice must be sent to the entity that submitted the election and the parties who were sent the notice of hearing.
(i) If the election was submitted after the hearing occurred, the written notice of invalid election must be sent no later than the date the decision, dismissal, or remand notice is mailed.
(ii) If the election was submitted before the hearing occurs, the written notice of invalid election must be sent prior to the hearing. If the notice would be sent fewer than 5 calendar days before the hearing is scheduled to occur, oral notice must be provided to the entity that submitted the election, and the written notice to the entity and the parties who were sent the notice of hearing must be sent as soon as possible after the oral notice is provided.
§ 405.1014   Request for an ALJ hearing or a review of a QIC dismissal.
(a) Content of the request. (1) The request for an ALJ hearing or a review of a QIC dismissal must be made in writing. The request must include all of the following—
(i) The name, address, and Medicare number of the beneficiary whose claim is being appealed, and the beneficiary's telephone number if the beneficiary is the appealing party and not represented.
(ii) The name, address, and telephone number, of the appellant, when the appellant is not the beneficiary.
(iii) The name, address, and telephone number, of the designated representative, if any.
(iv) The Medicare appeal number or document control number, if any, assigned to the QIC reconsideration or dismissal notice being appealed.
(v) The dates of service of the claim(s) being appealed, if applicable.
(vi) The reasons the appellant disagrees with the QIC's reconsideration or other determination being appealed.
(2) The appellant must submit a statement of any additional evidence to be submitted and the date it will be submitted.
(3) Special rule for appealing statistical sample and/or extrapolation. If the appellant disagrees with how a statistical sample and/or extrapolation was conducted, the appellant must—
(i) Include the information in paragraphs (a)(1) and (2) of this section for each sample claim that the appellant wishes to appeal;
(ii) File the request for hearing for all sampled claims that the appellant wishes to appeal within 60 calendar days of the date the party receives the last reconsideration for the sample claims, if they were not all addressed in a single reconsideration; and
(iii) Assert the reasons the appellant disagrees with how the statistical sample and/or extrapolation was conducted in the request for hearing.
(b) Complete request required. (1) A request must contain the information in paragraph (a)(1) of this section to the extent the information is applicable, to be considered complete. If a request is not complete, the appellant will be provided with an opportunity to complete the request, and if an adjudication time frame applies, it does not begin until the request is complete. If the appellant fails to provide the information necessary to complete the request within the time frame provided, the appellant's request for hearing or review will be dismissed.
(2) If supporting materials submitted with a request clearly provide information required for a complete request, the materials will be considered in determining whether the request is complete.
(c) When and where to file. The request for an ALJ hearing or request for review of a QIC dismissal must be filed—
(1) Within 60 calendar days from the date the party receives notice of the QIC's reconsideration or dismissal, except as provided in paragraph (a)(3)(ii) of this section for appeals of extrapolations;
(2) With the office specified in the QIC's reconsideration or dismissal. If the request for hearing is timely filed with an office other than the office specified in the QIC's reconsideration, the request is not treated as untimely, and any applicable time frame specified in § 405.1016 for deciding the appeal begins on the date the office specified in the QIC's reconsideration or dismissal receives the request for hearing. If the request for hearing is filed with an office, other than the office specified in the QIC's reconsideration or dismissal, OMHA must notify the appellant of the date the request was received in the correct office and the commencement of any applicable adjudication time frame.
(d) Copy requirement. (1) The appellant must send a copy of the request for hearing or request for review of a QIC dismissal to the other parties who were sent a copy of the QIC's reconsideration or dismissal. If additional materials submitted with the request are necessary to provide the information required for a complete request in accordance with paragraph (b) of this section, copies of the materials must be sent to the parties as well (subject to authorities that apply to disclosing the personal information of other parties). If additional evidence is submitted with the request for hearing, the appellant may send a copy of the evidence, or briefly describe the evidence pertinent to the party and offer to provide copies of the evidence to the party at the party's request (subject to authorities that apply to disclosing the evidence).
(2) Evidence that a copy of the request for hearing or request for review of a QIC dismissal, or a copy of submitted evidence or a summary thereof, was sent in accordance with paragraph (d)(1) of this section includes—
(i) Certification on the standard form for requesting an ALJ hearing or requesting a review of a QIC dismissal that a copy of the request is being sent to the other parties;
(ii) An indication, such as a copy or “cc” line, on a request for hearing or request for review of a QIC dismissal that a copy of the request and any applicable attachments or enclosures are being sent to the other parties, including the name and address of the recipient;
(iii) An affidavit or certificate of service that identifies the name and address of the recipient, and what was sent to the recipient; or
(iv) A mailing or shipping receipt that identifies the name and address of the recipient, and what was sent to the recipient.
(3) If the appellant, other than an unrepresented beneficiary, fails to send a copy of the request for hearing or request for review of a QIC dismissal, any additional materials, or a copy of submitted evidence or a summary thereof, as described in paragraph (d)(1) of this section, the appellant will be provided with an additional opportunity to send the request, materials, and/or evidence or summary thereof, and if an adjudication time frame applies, it begins upon receipt of evidence that the request, materials, and/or evidence or summary thereof were sent. If the appellant, other than an unrepresented beneficiary, again fails to provide evidence that the request, materials, and/or evidence or summary thereof were sent within the additional time frame provided to send the request, materials, and/or evidence or summary thereof, the appellant's request for hearing or request for review of a QIC dismissal will be dismissed.
(e) Extension of time to request a hearing or review. (1) If the request for hearing or review of a QIC dismissal is not filed within 60 calendar days of receipt of the QIC's reconsideration or dismissal, an appellant may request an extension for good cause (See § 405.942(b)(2) and (3)).
(2) Any request for an extension of time must be in writing, give the reasons why the request for a hearing or review was not filed within the stated time period, and must be filed with the request for hearing or request for review of a QIC dismissal, or upon notice that the request may be dismissed because it was not timely filed, with the office specified in the notice of reconsideration or dismissal.
(3) An ALJ or attorney adjudicator may find there is good cause for missing the deadline to file a request for an ALJ hearing or request for review of a QIC dismissal, or there is no good cause for missing the deadline to file a request for a review of a QIC dismissal, but only an ALJ may find there is no good cause for missing the deadline to file a request for an ALJ hearing. If good cause is found for missing the deadline, the time period for filing the request for hearing or request for review of a QIC dismissal will be extended. To determine whether good cause for late filing exists, the ALJ or attorney adjudicator uses the standards set forth in § 405.942(b)(2) and (3).
(4) If a request for hearing is not timely filed, any applicable adjudication period in § 405.1016 begins the date the ALJ or attorney adjudicator grants the request to extend the filing deadline.
(5) A determination granting a request to extend the filing deadline is not subject to further review.
§ 405.1016   Time frames for deciding an appeal of a QIC reconsideration or escalated request for a QIC reconsideration.
(a) Adjudication period for appeals of QIC reconsiderations. When a request for an ALJ hearing is filed after a QIC has issued a reconsideration, an ALJ or attorney adjudicator issues a decision, dismissal order, or remand to the QIC, as appropriate, no later than the end of the 90 calendar day period beginning on the date the request for hearing is received by the office specified in the QIC's notice of reconsideration, unless the 90 calendar day period has been extended as provided in this subpart.
(b) When the adjudication period begins. (1) Unless otherwise specified in this subpart, the adjudication period specified in paragraph (a) of this section begins on the date that a timely filed request for hearing is received by the office specified in the QIC's reconsideration, or, if it is not timely filed, the date that the ALJ or attorney adjudicator grants any extension to the filing deadline.
(2) If the Council remands a case and the case was subject to an adjudication time frame under paragraph (a) or (c) of this section, the remanded appeal will be subject to the adjudication time frame of paragraph (a) of this section beginning on the date that OMHA receives the Council remand.
(c) Adjudication period for escalated requests for QIC reconsiderations. When an appeal is escalated to OMHA because the QIC has not issued a reconsideration determination within the period specified in § 405.970, an ALJ or attorney adjudicator issues a decision, dismissal order, or remand to the QIC, as appropriate, no later than the end of the 180 calendar day period beginning on the date that the request for escalation is received by OMHA in accordance with § 405.970, unless the 180 calendar day period is extended as provided in this subpart.
(d) Waivers and extensions of adjudication period. (1) At any time during the adjudication process, the appellant may waive the adjudication period specified in paragraphs (a) and (c) of this section. The waiver may be for a specific period of time agreed upon by the ALJ or attorney adjudicator and the appellant.
(2) The adjudication periods specified in paragraphs (a) and (c) of this section are extended as otherwise specified in this subpart, and for the following events—
(i) The duration of a stay of action on adjudicating the claims or matters at issue ordered by a court or tribunal of competent jurisdiction; or
(ii) The duration of a stay of proceedings granted by an ALJ or attorney adjudicator on a motion by an appellant, provided no other party also filed a request for hearing on the same claim at issue.
(e) Effect of exceeding adjudication period. If an ALJ or attorney adjudicator fails to issue a decision, dismissal order, or remand to the QIC within an adjudication period specified in this section, subject to paragraphs (b) and (d) of this section, the party that filed the request for hearing may escalate the appeal in accordance with paragraph (f) of this section. If the party that filed the request for hearing does not elect to escalate the appeal, the appeal remains pending with OMHA for a decision, dismissal order, or remand.
(f) Requesting escalation —(1) When and how to request escalation. An appellant who files a timely request for hearing before an ALJ and whose appeal continues to be pending with OMHA at the end of the applicable adjudication period under paragraph (a) or (c) of this section, subject to paragraphs (b) and (d) of this section, may exercise the option of escalating the appeal to the Council by filing a written request with OMHA to escalate the appeal to the Council and sending a copy of the request to escalate to the other parties who were sent a copy of the QIC reconsideration.
(2) Escalation. If the request for escalation meets the requirements of paragraph (f)(1) of this section and an ALJ or attorney adjudicator is not able to issue a decision, dismissal order, or remand order within the later of 5 calendar days of receiving the request for escalation, or 5 calendar days from the end of the applicable adjudication period set forth in paragraph (a) or (c) of this section, subject to paragraphs (b) and (d) of this section, OMHA will take the following actions—
(i) Send a notice to the appellant stating that an ALJ or attorney adjudicator is not able to issue a decision, dismissal order, or remand order within the adjudication period set forth in paragraph (a) or (c) of this section, the QIC reconsideration will be the decision that is subject to Council review consistent with § 405.1102(a), and the appeal will be escalated to the Council for a review in accordance with § 405.1108; and
(ii) Forward the case file to the Council.
(3) Invalid escalation request. If an ALJ or attorney adjudicator determines the request for escalation does not meet the requirements of paragraph (f)(1) of this section, OMHA will send a notice to the appellant explaining why the request is invalid within 5 calendar days of receiving the request for escalation.
§ 405.1018   Submitting evidence.
(a) When evidence may be submitted. Except as provided in this section, parties must submit all written or other evidence they wish to have considered with the request for hearing, by the date specified in the request for hearing in accordance with § 405.1014(a)(2), or if a hearing is scheduled, within 10 calendar days of receiving the notice of hearing.
(b) Effect on adjudication period. If a party submits written or other evidence later than 10 calendar days after receiving the notice of hearing, any applicable adjudication period specified in § 405.1016 is extended by the number of calendar days in the period between 10 calendar days after receipt of the notice of hearing and the day the evidence is received.
(c) New evidence. (1) Any evidence submitted by a provider, supplier, or beneficiary represented by a provider or supplier that is not submitted prior to the issuance of the QIC's reconsideration determination must be accompanied by a statement explaining why the evidence was not previously submitted to the QIC, or a prior decision-maker (see § 405.1028).
(2) If a statement explaining why the evidence was not previously submitted to the QIC or a prior decision-maker is not included with the evidence, the evidence will not be considered.
(d) When this section does not apply. (1) The requirements in paragraphs (a) and (b) of this section do not apply to oral testimony given at a hearing, or to evidence submitted by an unrepresented beneficiary.
(2) The requirements in paragraph (c) of this section do not apply to oral testimony given at a hearing, or to evidence submitted by an unrepresented beneficiary, CMS or any of its contractors, a Medicaid State agency, an applicable plan, or a beneficiary represented by someone other than a provider or supplier.
§ 405.1020   Time and place for a hearing before an ALJ.
(a) General. The ALJ sets the time and place for the hearing, and may change the time and place, if necessary.
(b) Determining how appearances are made —(1) Appearances by unrepresented beneficiaries. The ALJ will direct that the appearance of an unrepresented beneficiary who filed a request for hearing be conducted by video-teleconferencing (VTC) if the ALJ finds that VTC technology is available to conduct the appearance, unless the ALJ find good cause for an in-person appearance.
(i) The ALJ may also offer to conduct a hearing by telephone if the request for hearing or administrative record suggests that a telephone hearing may be more convenient for the unrepresented beneficiary.
(ii) The ALJ, with the concurrence of the Chief ALJ or designee, may find good cause that an in-person hearing should be conducted if—
(A) VTC or telephone technology is not available; or
(B) Special or extraordinary circumstances exist.
(2) Appearances by individuals other than unrepresented beneficiaries. The ALJ will direct that the appearance of an individual, other than an unrepresented beneficiary who filed a request for hearing, be conducted by telephone, unless the ALJ finds good cause for an appearance by other means.
(i) The ALJ may find good cause for an appearance by VTC if he or she determines that VTC is necessary to examine the facts or issues involved in the appeal.
(ii) The ALJ, with the concurrence of the Chief ALJ or designee, also may find good cause that an in-person hearing should be conducted if—
(A) VTC and telephone technology are not available; or
(B) Special or extraordinary circumstances exist.
(c) Notice of hearing. (1) A notice of hearing is sent to all parties that filed an appeal or participated in the reconsideration; any party who was found liable for the services at issue subsequent to the initial determination or may be found liable based on a review of the record; the QIC that issued the reconsideration or from which the request for reconsideration was escalated, or another contractor designated to receive the notice of hearing by CMS; and CMS or a contractor that elected to participate in the proceedings in accordance with § 405.1010(b) or that the ALJ believes would be beneficial to the hearing, advising them of the proposed time and place of the hearing.
(2) The notice of hearing will require all parties to the ALJ hearing to reply to the notice by:
(i) Acknowledging whether they plan to attend the hearing at the time and place proposed in the notice of hearing, or whether they object to the proposed time and/or place of the hearing;
(ii) If the party or representative is an entity or organization, specifying who from the entity or organization plans to attend the hearing, if anyone, and in what capacity, in addition to the individual who filed the request for hearing; and
(iii) Listing the witnesses who will be providing testimony at the hearing.
(3) The notice of hearing will require CMS or a contractor that wishes to attend the hearing as a participant to reply to the notice by:
(i) Acknowledging whether it plans to attend the hearing at the time and place proposed in the notice of hearing; and
(ii) Specifying who from the entity plans to attend the hearing.
(d) A party's right to waive a hearing. A party may also waive the right to a hearing and request a decision based on the written evidence in the record in accordance with § 405.1038(b). As provided in § 405.1000, an ALJ may require the parties to attend a hearing if it is necessary to decide the case. If an ALJ determines that it is necessary to obtain testimony from a non-party, he or she may still hold a hearing to obtain that testimony, even if all of the parties have waived the right to appear. In those cases, the ALJ will give the parties the opportunity to appear when the testimony is given but may hold the hearing even if none of the parties decide to appear.
(e) A party's objection to time and place of hearing. (1) If a party objects to the time and place of the hearing, the party must notify the ALJ at the earliest possible opportunity before the time set for the hearing.
(2) The party must state the reason for the objection and state the time and place he or she wants the hearing to be held.
(3) The request must be in writing, except that a party may orally request that a hearing be rescheduled in an emergency circumstance the day prior to or day of the hearing. The ALJ must document all oral requests for a rescheduled hearing in writing and maintain the documentation in the administrative record.
(4) The ALJ may change the time or place of the hearing if the party has good cause.
(5) If the party's objection to the place of the hearing includes a request for an in-person or VTC hearing, the objection and request are considered in paragraph (i) of this section.
(f) Good cause for changing the time or place. The ALJ can find good cause for changing the time or place of the scheduled hearing and reschedule the hearing if the information available to the ALJ supports the party's contention that—
(1) The party or his or her representative is unable to attend or to travel to the scheduled hearing because of a serious physical or mental condition, incapacitating injury, or death in the family; or
(2) Severe weather conditions make it impossible to travel to the hearing; or
(3) Good cause exists as set forth in paragraph (g) of this section.
(g) Good cause in other circumstances. (1) In determining whether good cause exists in circumstances other than those set forth in paragraph (f) of this section, the ALJ considers the party's reason for requesting the change, the facts supporting the request, and the impact of the proposed change on the efficient administration of the hearing process.
(2) Factors evaluated to determine the impact of the change include, but are not limited to, the effect on processing other scheduled hearings, potential delays in rescheduling the hearing, and whether any prior changes were granted the party.
(3) Examples of other circumstances a party might give for requesting a change in the time or place of the hearing include, but are not limited to, the following:
(i) The party has attempted to obtain a representative but needs additional time.
(ii) The party's representative was appointed within 10 calendar days of the scheduled hearing and needs additional time to prepare for the hearing.
(iii) The party's representative has a prior commitment to be in court or at another administrative hearing on the date scheduled for the hearing.
(iv) A witness who will testify to facts material to a party's case is unavailable to attend the scheduled hearing and the evidence cannot be otherwise obtained.
(v) Transportation is not readily available for a party to travel to the hearing.
(vi) The party is unrepresented, and is unable to respond to the notice of hearing because of any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) that he or she has.
(vii) The party or representative has a prior commitment that cannot be changed without significant expense.
(viii) The party or representative asserts that he or she did not receive the notice of hearing and is unable to appear at the scheduled time and place.
(h) Effect of rescheduling hearing. If a hearing is postponed at the request of the appellant for any of the above reasons, the time between the originally scheduled hearing date and the new hearing date is not counted toward the adjudication period specified in § 405.1016.
(i) A party's request for an in-person or VTC hearing. (1) If an unrepresented beneficiary who filed the request for hearing objects to a VTC hearing or to the ALJ's offer to conduct a hearing by telephone, or if a party other than an unrepresented beneficiary who filed the request for hearing objects to a telephone or VTC hearing, the party must notify the ALJ at the earliest possible opportunity before the time set for the hearing and request a VTC or an in-person hearing.
(2) The party must state the reason for the objection and state the time and/or place he or she wants an in-person or VTC hearing to be held.
(3) The request must be in writing.
(4) When a party's request for an in-person or VTC hearing as specified under paragraph (i)(1) of this section is granted and an adjudication time frame applies in accordance with § 405.1016, the ALJ issues a decision, dismissal, or remand to the QIC within the adjudication time frame specified in § 405.1016 (including any applicable extensions provided in this subpart) unless the party requesting the hearing agrees to waive such adjudication time frame in writing.
(5) The ALJ may grant the request, with the concurrence of the Chief ALJ or designee if the request was for an in-person hearing, upon a finding of good cause and will reschedule the hearing for a time and place when the party may appear in person or by VTC before the ALJ. Good cause is not required for a request for VTC hearing made by an unrepresented beneficiary who filed the request for hearing and objects to an ALJ's offer to conduct a hearing by telephone.
(j) Amended notice of hearing. If the ALJ changes or will change the time and/or place of the hearing, an amended notice of hearing must be sent to all of the parties who were sent a copy of the notice of hearing and CMS or its contractors that elected to be a participant or party to the hearing in accordance with § 405.1022(a).
§ 405.1022   Notice of a hearing before an ALJ.
(a) Issuing the notice. After the ALJ sets the time and place of the hearing, notice of the hearing will be mailed or otherwise transmitted in accordance with OMHA procedures to the parties and other potential participants, as provided in § 405.1020(c) at their last known address, or given by personal service, except to a party or potential participant who indicates in writing that it does not wish to receive this notice. The notice is mailed, transmitted, or served at least 20 calendar days before the hearing unless the recipient agrees in writing to the notice being mailed, transmitted, or served fewer than 20 calendar days before the hearing.
(b) Notice information. (1) The notice of hearing contains—
(i) A statement that the issues before the ALJ include all of the issues brought out in the initial determination, redetermination, or reconsideration that were not decided entirely in a party's favor, for the claims specified in the request for hearing; and
(ii) A statement of any specific new issues the ALJ will consider in accordance with § 405.1032.
(2) The notice will inform the parties that they may designate a person to represent them during the proceedings.
(3) The notice must include an explanation of the procedures for requesting a change in the time or place of the hearing, a reminder that the ALJ may dismiss the hearing request if the appellant fails to appear at the scheduled hearing without good cause, and other information about the scheduling and conduct of the hearing.
(4) The appellant will also be told if his or her appearance or that of any other party or witness is scheduled by VTC, telephone, or in person. If the ALJ has scheduled the appellant or other party to appear at the hearing by VTC, the notice of hearing will advise that the scheduled place for the hearing is a VTC site and explain what it means to appear at the hearing by VTC.
(5) The notice advises the appellant or other parties that if they object to appearing by VTC or telephone, and wish instead to have their hearing at a time and place where they may appear in person before the ALJ, they must follow the procedures set forth at § 405.1020(i) for notifying the ALJ of their objections and for requesting an in-person hearing.
(c) Acknowledging the notice of hearing. (1) If the appellant, any other party to the reconsideration to whom the notice of hearing was sent, or their representative does not acknowledge receipt of the notice of hearing, OMHA attempts to contact the party for an explanation.
(2) If the party states that he or she did not receive the notice of hearing, a copy of the notice is sent to him or her by certified mail or other means requested by the party and in accordance with OMHA procedures.
(3) The party may request that the ALJ reschedule the hearing in accordance with § 405.1020(e).
§ 405.1024   Objections to the issues.
(a) If a party objects to the issues described in the notice of hearing, he or she must notify the ALJ in writing at the earliest possible opportunity before the time set for the hearing, and no later than 5 calendar days before the hearing.
(b) The party must state the reasons for his or her objections and send a copy of the objections to all other parties who were sent a copy of the notice of hearing, and CMS or a contractor that elected to be a party to the hearing.
(c) The ALJ makes a decision on the objections either in writing, at a prehearing conference, or at the hearing.
§ 405.1026   Disqualification of the ALJ or attorney adjudicator.
(a) An ALJ or attorney adjudicator cannot adjudicate an appeal if he or she is prejudiced or partial to any party or has any interest in the matter pending for decision.
(b) If a party objects to the ALJ or attorney adjudicator assigned to adjudicate the appeal, the party must notify the ALJ within 10 calendar days of the date of the notice of hearing if a hearing is scheduled, or the ALJ or attorney adjudicator at any time before a decision, dismissal order, or remand order is issued if no hearing is scheduled. The ALJ or attorney adjudicator considers the party's objections and decides whether to proceed with the appeal or withdraw.
(c) If the ALJ or attorney adjudicator withdraws, another ALJ or attorney adjudicator will be assigned to adjudicate the appeal. If the ALJ or attorney adjudicator does not withdraw, the party may, after the ALJ or attorney adjudicator has issued an action in the case, present his or her objections to the Council in accordance with § 405.1100 through § 405.1130. The Council will then consider whether the decision or dismissal should be revised or if applicable, a new hearing held before another ALJ. If the case is escalated to the Council after a hearing is held but before the ALJ issues a decision, the Council considers the reasons the party objected to the ALJ during its review of the case and, if the Council deems it necessary, may remand the case to another ALJ for a hearing and decision.
(d) If the party objects to the ALJ or attorney adjudicator and the ALJ or attorney adjudicator subsequently withdraws from the appeal, any adjudication time frame that applies to the appeal in accordance with § 405.1016 is extended by 14 calendar days.
§ 405.1028   Review of evidence submitted by parties.
(a) New evidence —(1) Examination of any new evidence. After a hearing is requested but before a hearing is held by an ALJ or a decision is issued if no hearing is held, the ALJ or attorney adjudicator will examine any new evidence submitted in accordance with § 405.1018, by a provider, supplier, or beneficiary represented by a provider or supplier to determine whether the provider, supplier, or beneficiary represented by a provider or supplier had good cause for submitting the evidence for the first time at the OMHA level.
(2) Determining if good cause exists. An ALJ or attorney adjudicator finds good cause when—
(i) The new evidence is, in the opinion of the ALJ or attorney adjudicator, material to an issue addressed in the QIC's reconsideration and that issue was not identified as a material issue prior to the QIC's reconsideration;
(ii) The new evidence is, in the opinion of the ALJ, material to a new issue identified in accordance with § 405.1032(b)(1);
(iii) The party was unable to obtain the evidence before the QIC issued its reconsideration and submits evidence that, in the opinion of the ALJ or attorney adjudicator, demonstrates the party made reasonable attempts to obtain the evidence before the QIC issued its reconsideration;
(iv) The party asserts that the evidence was submitted to the QIC or another contractor and submits evidence that, in the opinion of the ALJ or attorney adjudicator, demonstrates the new evidence was submitted to the QIC or another contractor before the QIC issued the reconsideration; or
(v) In circumstances not addressed in paragraphs (a)(2)(i) through (iv) of this section, the ALJ or attorney adjudicator determines that the party has demonstrated that it could not have obtained the evidence before the QIC issued its reconsideration.
(3) If good cause does not exist. If the ALJ or attorney adjudicator determines that there was not good cause for submitting the evidence for the first time at the OMHA level, the ALJ or attorney adjudicator must exclude the evidence from the proceeding and may not consider it in reaching a decision.
(4) Notification to parties. If a hearing is conducted, as soon as possible, but no later than the start of the hearing, the ALJ must notify all parties and participants who responded to the notice of hearing whether the evidence will be considered or is excluded from consideration.
(b) Duplicative evidence. The ALJ or attorney adjudicator may exclude from consideration any evidence submitted by a party at the OMHA level that is duplicative of evidence already in the record forwarded to OMHA.
§ 405.1030   ALJ hearing procedures.
(a) General rule. A hearing is open to the parties and to other persons the ALJ considers necessary and proper.
(b) At the hearing. (1) At the hearing, the ALJ fully examines the issues, questions the parties and other witnesses, and may accept evidence that is material to the issues consistent with §§ 405.1018 and 405.1028.
(2) The ALJ may limit testimony and/or argument at the hearing that are not relevant to an issue before the ALJ, that are repetitive of evidence or testimony already in the record, or that relate to an issue that has been sufficiently developed or on which the ALJ has already ruled. The ALJ may, but is not required to, provide the party or representative with an opportunity to submit additional written statements and affidavits on the matter, in lieu of testimony and/or argument at the hearing. The written statements and affidavits must be submitted within the time frame designated by the ALJ.
(3) If the ALJ determines that a party or party's representative is uncooperative, disruptive to the hearing, or abusive during the course of the hearing after the ALJ has warned the party or representative to stop such behavior, the ALJ may excuse the party or representative from the hearing and continue with the hearing to provide the other parties and participants with an opportunity to offer testimony and/or argument. If a party or representative was excused from the hearing, the ALJ will provide the party or representative with an opportunity to submit written statements and affidavits in lieu of testimony and/or argument at the hearing, and the party or representative may request a recording of the hearing in accordance with § 405.1042 and respond in writing to any statements made by other parties or participants and/or testimony of the witnesses at the hearing. The written statements and affidavits must be submitted within the time frame designated by the ALJ.
(c) Missing evidence. The ALJ may also stop the hearing temporarily and continue it at a later date if he or she believes that there is material evidence missing at the hearing. If the missing evidence is in the possession of the appellant, and the appellant is a provider, supplier, or a beneficiary represented by a provider or supplier, the ALJ must determine if the appellant had good cause in accordance with § 405.1028 for not producing the evidence earlier.
(d) Effect of new evidence on adjudication period. If an appellant, other than an unrepresented beneficiary, submits evidence pursuant to paragraph (b) or (c) of this section, and an adjudication period applies to the appeal, the adjudication period specified in § 405.1016 is extended in accordance with § 405.1018(b).
(e) Continued hearing. (1) A hearing may be continued to a later date. Notice of the continued hearing must be sent in accordance with § 405.1022, except that a waiver of notice of the hearing may be made in writing or on the record, and the notice is sent to the parties and participants who attended the hearing, and any additional parties or potential parties or participants the ALJ determines are appropriate.
(2) If the appellant requests the continuance and an adjudication period applies to the appeal in accordance with § 405.1016, the adjudication period is extended by the period between the initial hearing date and the continued hearing date.
(f) Supplemental hearing. (1) The ALJ may conduct a supplemental hearing at any time before he or she mails a notice of the decision in order to receive new and material evidence, obtain additional testimony, or address a procedural matter. The ALJ determines whether a supplemental hearing is necessary and if one is held, the scope of the hearing, including when evidence is presented and what issues are discussed. Notice of the supplemental hearing must be sent in accordance with § 405.1022, except that the notice is sent to the parties and participants who attended the hearing, and any additional parties or potential parties or participants the ALJ determines are appropriate.
(2) If the appellant requests the supplemental hearing and an adjudication period applies to the appeal in accordance with § 405.1016, the adjudication period is extended by the period between the initial hearing date and the supplemental hearing date.
§ 405.1032   Issues before an ALJ or attorney adjudicator.
(a) General rule. The issues before the ALJ or attorney adjudicator include all the issues for the claims or appealed matter specified in the request for hearing that were brought out in the initial determination, redetermination, or reconsideration that were not decided entirely in a party's favor. (For purposes of this provision, the term “party” does not include a representative of CMS or one of its contractors that may be participating in the hearing.)
(b) New issues —(1) When a new issue may be considered. A new issue may include issues resulting from the participation of CMS or its contractor at the OMHA level of adjudication and from any evidence and position papers submitted by CMS or its contractor for the first time to the ALJ. The ALJ or any party may raise a new issue relating to a claim or appealed matter specified in the request for hearing; however, the ALJ may only consider a new issue, including a favorable portion of a determination on a claim or appealed matter specified in the request for hearing, if its resolution could have a material impact on the claim or appealed matter and—
(i) There is new and material evidence that was not available or known at the time of the determination and that may result in a different conclusion; or
(ii) The evidence that was considered in making the determination clearly shows on its face that an obvious error was made at the time of the determination.
(2) Notice of the new issue. The ALJ may consider a new issue at the hearing if he or she notifies the parties that were or will be sent the notice of hearing about the new issue before the start of the hearing.
(3) Opportunity to submit evidence. If notice of the new issue is sent after the notice of hearing, the parties will have at least 10 calendar days after receiving notice of the new issue to submit evidence regarding the issue, and without affecting any applicable adjudication period. If a hearing is conducted before the time to submit evidence regarding the issue expires, the record will remain open until the opportunity to submit evidence expires.
(c) Adding claims to a pending appeal. (1) Claims that were not specified in a request for hearing may only be added to a pending appeal if the claims were adjudicated in the same reconsideration that is appealed, and the period to request an ALJ hearing for that reconsideration has not expired, or an ALJ or attorney adjudicator extends the time to request an ALJ hearing on those claims in accordance with § 405.1014(e).
(2) Before a claim may be added to a pending appeal, the appellant must submit evidence that demonstrates the information that constitutes a complete request for hearing in accordance with § 405.1014(b) and other materials related to the claim that the appellant seeks to add to the pending appeal were sent to the other parties to the claim in accordance with § 405.1014(d).
(d) Appeals involving statistical sampling and extrapolations —(1) Generally. If the appellant does not assert the reasons the appellant disagrees with how a statistical sample and/or extrapolation was conducted in the request for hearing, in accordance with § 405.1014(a)(3)(iii), issues related to how the statistical sample and extrapolation were conducted shall not be considered or decided.
(2) Consideration of sample claims. If a party asserts a disagreement with how a statistical sample and/or extrapolation was conducted in the request for hearing, in accordance with § 405.1014(a)(3)(iii), paragraphs (a) through (c) of this section apply to the adjudication of the sample claims but, in deciding issues related to how a statistical sample and/or extrapolation was conducted the ALJ or attorney adjudicator must base his or her decision on a review of the entire sample to the extent appropriate to decide the issue.
§ 405.1034   Requesting information from the QIC.
(a) If an ALJ or attorney adjudicator believes that the written record is missing information that is essential to resolving the issues on appeal and that information can be provided only by CMS or its contractors, the information may be requested from the QIC that conducted the reconsideration or its successor.
(1) Official copies of redeterminations and reconsiderations that were conducted on the appealed claims, and official copies of dismissals of a request for redetermination or reconsideration, can be provided only by CMS or its contractors. Prior to issuing a request for information to the QIC, OMHA will confirm whether an electronic copy of the redetermination, reconsideration, or dismissal is available in the official system of record, and if so will accept the electronic copy as an official copy.
(2) “Can be provided only by CMS or its contractors” means the information is not publicly available, is not in the possession of, and cannot be requested and obtained by one of the parties. Information that is publicly available is information that is available to the general public via the Internet or in a printed publication. Information that is publicly available includes, but is not limited to, information available on a CMS or contractor Web site or information in an official CMS or DHHS publication (including, but not limited to, provisions of NCDs or LCDs, procedure code or modifier descriptions, fee schedule data, and contractor operating manual instructions).
(b) The ALJ or attorney adjudicator retains jurisdiction of the case, and the case remains pending at OMHA.
(c) The QIC has 15 calendar days after receiving the request for information to furnish the information or otherwise respond to the information request directly or through CMS or another contractor.
(d) If an adjudication period applies to the appeal in accordance with § 405.1016, the adjudication period is extended by the period between the date of the request for information and the date the QIC responds to the request or 20 calendar days after the date of the request, whichever occurs first.