Subpart G-[Reserved]

Subpart H-Review and Hearing Under the Supplementary Medical Insurance Program

AUTHORITY: The provisions of this Subpart H issued under sections 1102, 1831-1843, 1871, 49 Stat. 647, as amended, 79 Stat. 301313; 79 Stat. 331; 42 U.S.C. 1302, 1395 et seq.

SOURCE: The provisions of this Subpart H appear at 32 F.R. 18028, Dec. 16, 1967, unless otherwise noted.

§ 405.801 Title XVIII, Part B—General.

(a) Section 1842(b) (3) (C) of the Act provides that a carrier shall establish and maintain procedures under which an individual enrolled in the supplementary -medical insurance plan (see Subpart B of this part) is provided with the opportunity for a hearing by the carrier when he is dissatisfied with the carrier's determination denying a request for payment, or with the amount of payment under the supplementary medical insurance plan or when he believes that the request for payment is not being acted upon with reasonable promptness. A physician or other person who furnishes items or services to a person enrolled under the supplementary medical insurance plan and who accepts an assignment from the enrollee has the same right as the enrollee to appeal the carrier's determination.

(b) For the purpose of paragraph (a) of this section and determining whether action is being taken on a request for payment with reasonable promptness, it will be deemed unreasonable if the request for payment has not been acted upon within a period of 60 days after the receipt of such request by the carrier. § 405.802 Definitions.

As used in this Subpart H the term: (a) "Carrier" means an organization which has entered into a contract with the Secretary pursuant to section 1842 of the Act and which is authorized to make determinations with respect to Part B of title XVIII of the Social Security Act.

(b) "Party" means an enrollee or an assignee or any other entity determined to have an appealable interest (i.e., the patient, physician) in the proceeding.

(c) "Enrollee" means an individual who was enrolled under Part B of title XVIII of the Social Security Act at the time the items and services for which

payment is being requested were rendered.

(d) "Assignee" means a physician or other person who furnished covered services to an enrollee under the supplementary medical insurance plan and who has accepted a valid assignment executed by such enrollee.

(e) "Assignment" means an agreement between an enrollee and a physician or other person furnishing services under the supplementary medical insurance plan, which contains the following provisions:

(1) The enrollee transfers the right to request payment for such services to the physician or other person furnishing services under the supplementary medical insurance plan, and

(2) The physician, or other person furnishing such services to the enrollee, agrees to accept the carrier's determination of the reasonable charges for his services as his full charge for such services.

(f) "Representative" means any authorized individual qualified under § 405.871 to effectively represent any party to the proceeding.

§ 405.803 Initial determination.

(a) The carrier shall evaluate the evidence and make an initial determination with respect to the benefits to be paid under the supplementary medical insurance plan to any party who has filed a request for payment of such benefits.

(b) An initial determination for purposes of this subpart includes among others, a determination as to whether items and services furnished are covered; whether the deductible has been met; whether the receipted bill or other evidence of payment is acceptable; and whether the charges for items or services furnished are reasonable.

(c) For purposes of this subpart, a carrier may not make an initial determination with respect to any issue or factor for which the Social Security Administration has sole responsibility (for example, whether or not an individual is entitled to coverage under the supplementary medical insurance plan; whether an independent laboratory meets the conditions for coverage of services; etc.), or which relates to hospital insurance benefits under Part A of title XVIII of the Act.

The parties to the initial determination (see § 405.803) are the enrollee and/or the assignee, and/or any other entity determined to have an appealable interest in the proceedings.

§ 405.806 Effect of initial determination.

The initial determination shall be final and binding upon the party or parties to such determination unless it is reviewed in accordance with §§ 405.810-405.812, or is revised in accordance with § 405.841. § 405.807 Filing for review of initial determination.

(a) General; informal review. A party to an initial determination by a carrier, who is dissatisfied with such initial determination, may request that the carrier review such determination. If a review is requested, such action shall not constitute a waiver of the right to hearing (see § 405.820) subsequent to such review.

(b) Place of filing request. A request for a carrier to review the initial determination is to be made in writing and filed at an office of the carrier which made the initial determination or at an office of the Social Security Administration.

(c) Time of filing request. The carrier shall provide a period of not less than 6 months after the date of the notice of the initial determination within which a party to the initial determination may request review. The carrier may, upon request by the party affected, extend the period for requesting the review.

§ 405.805, and any other party whose rights with respect to the particular claim being reviewed may be affected by such review.

§ 405.809 Opportunity to submit evidence.

The parties to the review shall have a reasonable opportunity to submit written evidence and contentions as to fact or law relative to the claim at issue.

§ 405.810 Informal review determination.

The carrier shall review the claim in dispute and, upon the basis of the evidence of record, shall make an informal review determination affirming or revising in whole or in part the findings and determination in question.

§ 405.811 Notice of informal review de

termination.

Written notice of the determination after informal review shall be mailed to the parties thereto at their last known addresses. The review determination shall state the basis therefor and advise the parties of their right to a hearing, the place and manner of requesting a hearing, and the time limit during which & hearing must be requested (see §§ 405.820 and 405.821).

§ 405.812 Effect of informal review de

termination.

The informal review determination shall be final and binding upon all parties to the informal review unless & hearing determination is rendered pursuant to a request made in accordance with § 405.821 or is revised in accordance with 405.841.

§ 405.820 Right to hearing.

(a) General. Any party designated in § 405.822 shall be entitled to a hearing after an informal review determination has been made by the carrier, if such party files a written request.

(b) Place of filing request. The hearing request must be filed at an office of the carrier or at an office of the Social Security Administration.

(c) Time of filing request. The carrier shall provide a period of not less than 6 months after the date of the notice of the informal review determination within which a party to the initial or informal review determination may request a hearing. The carrier may, upon request by the party affected, extend the period for filing the request for hearing.

§ 405.821 Request for hearing.

A request for a hearing is any clear expression in writing by a party to a review determination which states, in effect, that he is dissatisfied with the carrier's review determination and wants = further opportunity to appeal the matter E to the carrier.

§ 405.822 Parties to a hearing.

The parties to a hearing shall be the persons who were parties to the carrier's informal review determination (§ 405.808) which is in question. Any other person may be made a party if that person's rights with respect to supplementary medical insurance benefits may be prejudiced by the decision, or if the hearing officer notifies him to appear at the hearing or to present such evidence and contentions of law or fact as he may desire in support of his interest. § 405.823 Hearing officer.

The hearing provided for in this sub= part shall be conducted by a hearing E officer designated by the appropriate sofficial of the carrier.

§ 405.824 Disqualification of hearing officer.

A hearing officer shall not conduct a hearing in any case in which he is prejudiced or partial with respect to any party, or if he has any interest in the - matter before him. Notice of any objection with respect to the hearing officer who will conduct the hearing shall be made by the objecting party at his earliest opportunity. The hearing officer shall consider such objection and shall, at his discretion, withdraw. If the hearing officer withdraws, the appropriate official of the carrier shall designate anI other hearing officer to conduct the ■ hearing. If the hearing officer does not = withdraw, the objecting party may present his objections to the carrier for consideration at any time prior to the issuance of a decision. The carrier shall review the request and take appropriate action. The fact that a hearing officer is an employee of the carrier may not serve as prima facie cause for disqualification. § 405.825 Location of hearing.

(a) Time and place. The hearing officer shall fix a time and place for the hearing reasonably convenient to the requesting party and not inconsistent with the public interest.

(b) Adjournment or postponement. The hearing officer may, for a good and sufficient reason, fix a new time and/or place for the hearing; he may change the time and place for the hearing or adjourn the hearing on his own motion upon reasonable notification to the parties.

§ 405.826 Notice of hearing.

The notice of hearing is to include notice of the time and place of the hearing; information as to the specific issues to be determined; and the matters on which findings will be made and conclusions will be reached. The notice is to contain sufficient information about the hearing procedure (including the party's right to representation) for effective preparation for the hearing.

§ 405.830 Conduct of the hearing.

(a) General. Hearings shall be open to the parties and to such other persons as the hearing officer deems necessary and proper for the orderly and efficient conduct of the hearing. The hearing officer shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. The parties shall be provided an opportunity to enter any objection to the inclusion of any document. The order in which evidence and allegations shall be presented and the procedure at the hearing, except as this subpart otherwise expressly provides, shall be at the discretion of the hearing officer and of such nature as to afford the parties a proper hearing.

(b) Evidence. Evidence may be reIceived at the hearing even though inadmissible under rules of evidence applicable to court procedures.

(c) Witnesses. The hearing officer may examine the witnesses and shall allow the parties or their representatives to do so. If the hearing officer conducts the examination of a witness, he may allow the parties to suggest matters upon which they desire the witness to be questioned, and the hearing officer shall question the witness with respect to such matters if they are relevant and material to any issue pending for decision before him.

(d) Oral argument and written allegations. The parties, upon their request, shall be allowed a reasonable time for the presentation of oral argument or for the filing of briefs or other written statements or allegations of facts or law.

(e) Consolidated issues. When one or more new issues are raised at any time after a request for hearing has been made, but before the mailing of notice of the decision, the hearing officer may, at his discretion, consider the issues along with the other issues pending before him on the same request for hearing.

§ 405.831 Waiver of right to appear and present evidence.

If all parties waive their right to appear before the hearing officer and present evidence and contentions personally or by representative, it shall not be necessary for the hearing officer to give notice of or conduct a formal hearing as provided in §§ 405.825 through 405.830. A waiver of the right to appear is to be in writing and filed with the hearing officer or the carrier. Such waiver may be withdrawn by a party at any time prior to the mailing of notice of the decision in the case. Even though all of the parties have filed a waiver of the right to appear and present evidence and contentions at a hearing before the hearing officer, the hearing officer may, nevertheless, give notice of a time and place and conduct a hearing as provided in §§ 405.825 through 405.830, if he believes that the personal appearance and testimony of the party or parties would assist him to ascertain the facts at issue in the case. For purposes of this section, failure of the parties to appear shall not be cause for a finding of abandonment and the hearing officer shall make his decision on the basis of all evidence adduced.

(a) By application of party. With the approval of the hearing officer, a request for a hearing may be withdrawn or dismissed at any time prior to the mailing of notice of the decision upon the application of the party or parties filing the request for such hearing. A party may request a dismissal by filing a written notice of such request with the carrier, the hearing officer or orally stating such request at the hearing. The dismissal of a request for hearing shall be final and binding unless vacated (see paragraph (d) of this section).

(b) Dismissal by abandonment of party. A hearing officer may dismiss a request for hearing upon abandonment

by the party or parties who filed the request. A party shall be deemed to have abandoned a request for hearing, other than where personal appearance is waived in accordance with § 405.831, if neither the party nor his representative appears at the time and place fixed for the hearing and within 10 days after the mailing of a notice to him by the hearing officer to show cause, such party does not show good and sufficient cause for such failure to appear and failure to notify the hearing officer prior to the time fixed for hearing that he cannot appear.

(c) Dismissal for cause. The hearing officer may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under either of the following circumstances:

(1) Where the party requesting a hearing is not a proper party under § 405.822 or does not otherwise have a right to a hearing under section 1842 (b) (3) (C) of the Act; or

(2) Where the party who filed the hearing request dies and there is no information before the hearing officer showing that an individual who is not a party may be prejudiced by the carrier's determination.

(d) Vacation of dismissal. A hearing officer may, on request of a party and for good and sufficient cause shown, vacate any dismissal of a request for hearing at any time within 6 months from the date of mailing notice of the dismissal to the party requesting the hearing at his last known address. § 405.833 Record of hearing.

A complete record of the proceedings at the hearing shall be made. The testimony shall be transcribed and copies of other documentary evidence shall be reproduced in any case when directed by the hearing officer, the carrier or the Administration. The record will also be transcribed and reproduced at the request of a party to the hearing provided he bears the cost thereof.

§ 405.834 Hearing officer's decision.

As soon as practicable after the close of a hearing, the hearing officer, except as provided in this subpart, shall make a decision in the case which shall be based upon the evidence adduced at the hearing (see §§ 405.820 to 405.830) or otherwise included in the hearing record

(see 405.833). The decision shall be made in writing and contain findings of fact and statement of reasons. A copy of the decision shall be mailed to each party to the hearing at his last known address.

§ 405.835 Effect of hearing officer's decision.

The hearing officer's decision, provided for in § 405.834, shall be final and binding upon all parties to the hearing unless it is revised in accordance with § 405.841.

§ 405.841 Reopening initial or informal review determination of the carrier, and decision of a hearing officer.

(a) Initial or review determination. An initial or review determination may be reopened and revised by the carrier on its own motion or, on the petition of any party to such determination within 1 year of the date of such determination, to allow for correction of a procedural or substantive defect in the proceedings.

(b) Decision of hearing officer. Either on the motion of the hearing officer, or upon the motion of any party to a hearing, any decision of a hearing officer may be reopened and revised by such hearing officer within 1 year of the date of such determination, or if such hearing officer is unavailable for reasons including death, termination of employment, illness, or leave of absence, by another hearing officer selected by the carrier. § 405.842 Notice of reopening and revision.

(a) Notice. When any determination or decision is reopened as provided in § 405.841, notice of such reopening shall be mailed to the parties to such determination or decision at their last known addresses. A notice of revision following a reopening of a decision, shall be mailed to the parties and shall state the basis for the revised determination or decision.

(b) Effect of revised determination. The revision of a determination shall be final and binding upon all parties thereto unless a party (see § 405.841) files a written request for a hearing with respect to a revised determination.

§ 405.850 Change of ruling or legal precedent.

Change of a legal interpretation or administrative ruling upon which a de

§ 405.871 Qualifications of representatives.

Any individual may be appointed to act as representative in accordance with § 405.870, unless he is disqualified or suspended from acting as a representative in proceedings before the Social Security Administration or unless otherwise prohibited by law.

§ 405.872 Authority of representatives.

A representative, appointed and qualified as provided in §§ 405.870 and 405.871, may make or give, on behalf of the party he represents, any request or notice relative to any proceeding before the carrier including review and hearing. A representative shall be entitled to present evidence and allegations as to facts and law in any proceeding affecting the party he represents and to obtain information with respect to the claim of such party to the same extent as such party. Notice to any party of any action, determination, or decision, or request to any party for the production of evidence, shall be sent to the representative of such party.