tion and any revision thereof shall be given to the institution, facility, agency, clinic, laboratory, or portable X-ray supplier which was a party to the determination (see § 405.1520).

[34 F.R. 20185, Dec. 24, 1969]

§ 405.1520 Notice of revision.

Written notice of the revision of an initial or reconsidered determination (see § 405.1519) will be mailed to the institution, facility, agency, clinic, laboratory, or portable X-ray supplier which was a party to the determination. The notice of revision will state the basis or reasons for the revised determination and, if the determination be that an independent laboratory or supplier of portable X-ray services does not meet the conditions for coverage of its services (see Subparts M and N of this Part 405), will contain findings on conditions with respect to which the laboratory or portable X-ray supplier fails to meet the requirements of the law and regulations and will inform the laboratory or portable X-ray supplier of its right to a hearing as provided in § 405.1530. [34 F.R. 20185, Dec. 24, 1969]

The revision of an initial or reconsidered determination (see § 405.1519) shall be final and binding upon the parties to the determination unless a request for a hearing is filed and a decision rendered.

§ 405.1530 Hearing; right to hearing. After an initial and reconsidered determination that it does not qualify as a provider of services or that an independent laboratory or supplier of portable X-ray services does not meet the conditions for coverage of its services (see §§ 405.1502 (a) and (b) (1) and 405.1514); or after an initial determination described in § 405.1502 (b) (2) and (c); or after a revised determination described in § 405.1519, an institution, facility, agency, clinic, laboratory, or portable X-ray supplier shall be entitled to a hearing with respect to such determination, if the representative of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier files a written request for a hearing as provided in § 405.1531.

[34 F.R. 20185, Dec. 24, 1969]

§ 405.1531

Filing a request for a hearing; time and manner of filing.

(a) The request for a hearing shall be made in writing, signed by a proper official of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier concerned and filed at an office of the Administration, or with a hearing examiner or the Appeals Council of the Bureau of Hearings and Appeals. The request must be filed within 6 months after the date on which written notice of an initial determination provided for in § 405.1502 (b) (2) or (c), or a reconsidered or revised determination is mailed to the institution, facility, agency, clinic, laboratory, or portable X-ray supplier (see §§ 405.1503, 405.1516, and 405.1520), except where the time is extended for "good cause" (see § 405.1569).

(b) The request for a hearing shall contain a statement as to the specific issues or findings of fact and conclusions of law in the preceding determination with which the institution, facility, agency, clinic, laboratory, or portable X-ray supplier disagrees, and the basis for its contention that the specific issues and/or findings and conclusions were incorrect.

(c) The legal representative or any other authorized official of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier shall be a proper person to file the request for hearing.

[34 F.R. 20185, Dec. 24, 1969]

§ 405.1532 Parties to the hearing.

The parties to the hearing shall be the institution, facility, agency, clinic, laboratory, or portable X-ray supplier which was a party to the prior determination (see §§ 405.1502(b) (2) and (c), 405.1514, and 405.1519) and the Bureau of Health Insurance. The Bureau of Health Insurance shall be represented at the hearing (see § 405.1543).

[34 F.R. 20185, Dec. 24, 1969]

§ 405.1533 Hearing examiner.

The hearing provided for in this Subpart O shall be conducted by a hearing examiner designated by the Director, Bureau of Hearings and Appeals, or his delegate. In an appropriate case, the Director or his delegate may substitute another hearing examiner or designate, initially or by substitution, a member or members of the Appeals Council to conduct the hearing. The conduct of hearings shall be governed by this subpart.

§ 405.1534 Disqualification of hearing examiner.

No hearing examiner shall conduct a hearing in a case in which he is prejudiced or partial with respect to the institution, facility, agency, clinic, laboratory, or portable X-ray supplier, or where he has any interest in the matter pending for decision before him. Notice of any objection which a party to the hearing may have to the hearing examiner who will conduct the hearing shall be made at the earliest opportunity. The hearing examiner shall consider the objection(s) and shall, in his discretion, either proceed with the hearing or withdraw. If the hearing examiner withdraws, another hearing examiner shall be designated (see § 405.1533) to conduct the hearing. If the hearing examiner does not withdraw, the objecting party may, after the hearing, present his objections to the Appeals Council as reasons why he believes the hearing examiner's decision should be revised or a new hearing held before another hearing examiner,

[34 F.R. 20186, Dec. 24, 1969]

§ 405.1535 Prehearing conference.

At any time after a request for a hearing has been received, but prior to the time of the hearing (see §§ 405.1540 and 405.1541) the hearing examiner may, in his discretion, call a prehearing conference for the purpose of delineating the issues in controversy, identifying the evidence and witnesses to be presented at the hearing, and obtaining stipulations accordingly. On the request of either party or on his own motion, the hearing examiner may adjourn the prehearing conference and reconvene at a later date.

§ 405.1536 Time and place of prehearing conference.

The hearing examiner shall fix a time and place for the prehearing conference, written notice of which shall be mailed to the parties not less than 10 days prior to the conference date. The notice shall inform the parties of the purpose of the prehearing conference and the issues sought to be resolved, stipulated to, or excluded. If a party has information which will involve additional issues for consideration at the prehearing conference, other than those set forth in the notice of determination (see §§ 405.1503, 405.1516, and 405.1520) and the request for hearing by the institution, facility, agency, clinic, laboratory, or portable

X-ray supplier, timely notice should be given to the hearing examiner and the other party of such information. The hearing examiner may also raise any additional issues by including them in his notice of the prehearing conferences or during the conference. [34 F.R. 20186, Dec. 24, 1969]

§ 405.1537 Conduct of prehearing conference.

The prehearing conference shall be open to the representatives of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier and the representatives of the Bureau of Health Insurance, to their technical advisors, and to such other persons as the hearing examiner deems necessary or proper. The hearing examiner may accept the agreement of the parties as to those facts which are not in controversy and as to questions which have been resolved favorably to the institution, facility. agency, clinic, laboratory, or portable X-ray supplier subsequent to the determination in dispute. The hearing examiner may accept the agreement of the parties as to the remaining issues to be resolved. The parties may be requested to indicate what witnesses will be present to testify at the hearing, the qualifications of such witnesses, and the nature of other evidence to be submitted. [34 F.R. 20186, Dec. 24, 1969]

§ 405.1538 Record of prehearing conference.

A record shall be made of all agreements and stipulations entered into st the prehearing conference. The record will be transcribed on the request of either party or the hearing examiner. The hearing examiner shall issue an order setting forth the results of the prehearing conference and including the agreements made by the parties as to facts not in controversy, the matters to be considered at the hearing and the issues to be resolved. Copies of the order shall be sent to all parties. The parties shall be granted 10 days in which to file their objections to the order, following which the hearing examiner shall settle the order.

§ 405.1539 Effect of prehearing confer

ence.

The agreements entered into at the prehearing conference as to issues in controversy, facts stipulated to and evidence to be presented at the hearing shall be

binding on all parties unless, in the discretion of the hearing examiner, facts are presented which would make the agreement unreasonable or inequitable. § 405.1540

Time and place of hearing.

The hearing examiner shall fix a time and place for the hearing, written notice of which shall be mailed to the parties to the hearing not less than 10 days prior to the scheduled date of hearing. The notice shall inform the parties of the general and specific issues to be resolved at the hearing.

§ 405.1541 Change of time and place for hearing.

The hearing examiner may change the time and place for the hearing (see § 405.1540) either on his own motion or at the request of a party for good cause shown. The hearing examiner may adjourn or postpone the hearing, or he may reopen the hearing for the receipt of additional evidence at any time prior to the mailing of notice of the decision in the case (see § 405.1557). Reasonable notice shall be given to the parties of any change in the time or place of hearing or of an adjournment or of a reopening of the hearing.

E§ 405.1542 Hearing on new issues.

(a) On the application of either party, or on his own motion, the hearing examiner may give notice at any time after a request for hearing has been filed (see § 405.1531), but prior to the closing of the record, that he will consider any specific new issue which may affect the rights of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier, even though the Administration has not made an initial and reconsidered c determination with respect to the issue and even though the issue arose after the request for hearing or prehearing conference: Except that, in the case of an initial determination described in § 405.1502 (b) (2) or (c), the hearing examiner shall not consider any issue which arose on or after (1) the effective date of the termination of an institution's, facility's, agency's, or clinic's agreement with the Secretary or (2) the date on which it is determined that a laboratory or portable X-ray supplier no longer meets the conditions for coverage of its services. Notice of the time and place of the hearing on any new issue shall, unless waived (see § 405.1550), be given to the parties within the time and

manner prescribed in $ 405.1540. Upon giving of such notice, the hearing examiner shall, except as otherwise provided, proceed to hearing on such new issues in the same manner as he would on an issue in which an initial and reconsidered determination had been made by the Administration and a hearing request with respect thereto had been filed.

(b) On the application of either party, or on his own motion, in lieu of considering any new issue in the manner described in the preceding paragraph, the hearing examiner may remand the case to the Bureau of Health Insurance for consideration of the new issue and, where appropriate, a determination. Where necessary the hearing examiner may direct that the case be returned to him for further proceedings. See also § 405.1560. [34 F.R. 20186, Dec. 24, 1969]

§ 405.1543 Joint hearings.

When two or more institutions, facilities, agencies, clinics, laboratories, or portable X-ray suppliers have requested hearings and the same or substantially similar matters are in issue, the hearing examiner may, if all parties agree, fix the same times and places for each prehearing conference or hearing and conduct all such procedings jointly. Where joint hearings are held, a single record of the proceedings shall be made and a separate decision issued with respect to each institution, facility, agency, clinic, laboratory, or portable X-ray supplier. [34 F.R. 20186, Dec. 24, 1969] § 405.1544

Subpoenas.

When reasonably necessary for the full presentation of a case, the hearing examiner may upon his own motion, or upon the request of a party to the hearing, issue subpoenas for the attendance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents which are relevant and material to any matter in issue at the hearing. A party which desires the issuance of a subpoena shall, not less than 5 days prior to the time fixed for a hearing, file with the hearing examiner a written request therefor, designating the witnesses or documents to be produced, and describing the address and location thereof with sufficient particularity to permit such witnesses or documents to be found. The request for a subpoena shall state the pertinent facts which the party expects to establish by such witnesses or documents and

whether such facts could be established by other evidence without the use of a subpoena. A subpoena issued under the provisions of this section shall be issued in the name of the Secretary of Health, Education, and Welfare. The Social Security Administration shall pay the cost of the issuance and the fees and the mileage of any witnesses so subpoenaed, as provided in section 205(d) of the Act. § 405.1545 Conduct of the hearing.

The hearing shall be open to the representatives of the institution, facility, agency, clinic, laboratory, or portable Xray supplier and the representatives of the Bureau of Health Insurance, their technical advisors, and to such other persons as the hearing examiner deems necessary or proper. The hearing examiner shall inquire fully into all of the matters at issue (see § 405.1542) and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the hearing examiner believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing examiner may at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence. The order in which the evidence and the allegations shall be presented and the conduct of the hearing shall be at the discretion of hearing examiner.

[34 F.R. 20186, Dec. 24, 1969]

Evidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure. The hearing examiner shall rule on the admissibility of evidence. § 405.1547 Witnesses.

Witnesses at the hearing shall testify under oath or affirmation. The representative of each party shall be permitted to examine his own witnesses subject to interrogation by the representative of the other party. The hearing examiner may ask such questions as he deems necessary. He shall rule upon any objection made by either party as to the propriety of any question.

§ 405.1548 Oral and written summation.

The parties to a hearing shall be allowed a reasonable time for the presentation of an oral summation and for the filing of briefs or other written state

A complete record of the proceedings at the hearing shall be made and transcribed in all cases.

§ 405.1550 Waiver of right to appear and present evidence.

If the institution, facility, agency, clinic, laboratory, or portable X-ray supplier waives its right to appear before the hearing examiner and present testimony, it shall not be necessary for the hearing examiner to give notice of and conduct an oral hearing. A waiver of this right shall be made in writing and filed with the hearing examiner. A waiver may be withdrawn by an institution, facility, agency, clinic, laboratory, or portable X-ray supplier, for good cause shown, at any time prior to the mailing of notice of the decision in the case. Even though an institution, facility, agency, clinic, laboratory, or portable X-ray supplier has filed a waiver of a hearing before a hearing examiner, the hearing examiner may. nevertheless, give notice of a time and place and conduct a hearing if he believes that testimony of the representatives of the institution, facility, agency, clinic. laboratory, or portable X-ray supplier or other persons is needed to clarify the facts in issue, or on a showing of good cause by the Bureau of Health Insurance of the need to present oral evidence. When such a waiver has been filed and no testimony received, the hearing examiner shall make a record of the relevant written evidence, including applications, written statements, certificates, affidavits, reports, and other documents which were considered in connection with the initial, reconsidered, or revised determination (see §§ 405.1502, 405.1514, and 405.1519), and whatever additional relevant and material evidence was submitted by the parties for consideration by the hearing examiner. Any additional evidence submitted by either party shall be furnished to the other party and that party shall be given a reasonable opportunity to submit further evidence in rebuttal. The parties may submit briefs or other written statements of evidence and/or proposed findings of fact or conclusions of law, copies of which shall be sent in accordance with $ 405.1595. After the hearing examiner sets the case for

The hearing examiner, at any time or to the mailing of notice of the cision (see § 405.1557), may dismiss a aring request where a party withdraws

request for a hearing or where the stitution, facility, agency, clinic, oratory, or portable X-ray supplier Is that its request be dismissed. An =titution, facility, agency, clinic, oratory, or portable X-ray supplier -y request a dismissal by filing a writà notice with the hearing examiner. F.R. 20187, Dec. 24, 1969]

05.1552

Dismissal by abandonment.

The hearing examiner may dismiss a uest for hearing upon its abandonnt by the institution, facility, agency, nic, laboratory, or portable X-ray super on whose behalf it was filed. An titution, facility, agency, clinic, laboory, or portable X-ray supplier may be -med to have abandoned a request for ring if the representative or proper cial does not appear at the prehearing ference or hearing and prior to that Le has not shown good cause as to y he could not appear; or, within 10 s after the mailing of a notice to the resentative by the hearing examiner show cause, did not show good cause failing to appear or to notify the ring examiner prior to the time for prehearing conference or hearing t he could not appear. F.R. 20187, Dec. 24, 1969] 05.1553 Dismissal for cause.

n his own motion, or on the motion a party to the hearing, the hearing miner may dismiss a hearing request er entirely or as to any stated issue, er any of the following circumaces:

a) Resjudicata. Where there has been revious determination or decision by Secretary with respect to the rights he same institution, facility, agency, ic, laboratory, or portable X-ray supr on the same facts and law pertinent he same issue or issues which has

become final either by judicial affirmance or, without judicial consideration, upon failure of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision.

(b) No right to hearing. Where the party requesting a hearing is not a proper party (see § 405.1531 (c)) or does not otherwise have a right to a hearing.

(c) Hearing request not timely filed. Where an institution, facility, agency, clinic, laboratory, or portable X-ray supplier has failed to file a hearing request timely and the time for filing such request has not been extended. [34 F.R. 20187, Dec. 24, 1969]

§ 405.1554 Notice of dismissal and right to request review thereof.

Notice of the hearing examiner's dismissal action shall be mailed to the parties. Such notice shall advise the institution, facility, agency, clinic, laboratory, or portable X-ray supplier of its right to request review by the Appeals Council as provided in §§ 405.1561 and 405.1562.

[34 F.R. 20187, Dec. 24, 1969]

§ 405.1555 Effect of dismissal.

The dismissal of a request for hearing shall be final and binding unless vacated (see 405.1556).

§ 405.1556

Vacation of dismissal of request for hearing.

On the request of a party filed within 60 days of the date of the mailing of the notice of dismissal, a hearing examiner or the Appeals Council may, for good cause shown, vacate any dismissal of a request for hearing.

§ 405.1557 Hearing examiner's decision.

As soon as practical after the close of the hearing, the hearing examiner shall issue a decision in the case. The decision shall be based upon the evidence of record. The decision shall be made in writing and contain separate numbered findings of fact and conclusions of law. A copy of the decision shall be mailed to the parties.

§ 405.1558 Effect of hearing examiner's decision.

The hearing examiner's decision shall be final and binding unless reviewed by the Appeals Council or unless it is revised in accordance with § 405.1570.