[Code of Federal Regulations]

[Title 42, Volume 2]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR411.121]



[Page 402-403]

 

                         TITLE 42--PUBLIC HEALTH

 

                    CHAPTER IV--CENTERS FOR MEDICARE

                          & MEDICAID SERVICES,

                        DEPARTMENT OF HEALTH AND

                             HUMAN SERVICES

 

PART 411_EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT

--Table of Contents

 

Subpart E_Limitations on Payment for Services Covered Under Group Health 

                        Plans: General Provisions

 

Sec. 411.121  Hearing procedures.



    (a) Nature of hearing. (1) If any of the parties requests a hearing 

within 65 days from the date on the notice of the determination of 

nonconformance, the CMS Administrator appoints a hearing officer.

    (2) If no party files a request within the 65-day period, the 

initial determination of nonconformance is binding upon all parties 

unless it is reopened in accordance with Sec. 411.126.

    (3) If more than one party requests a hearing the hearing officer 

conducts a single hearing in which all parties may participate.

    (4) On the record review. Ordinarily, the hearing officer makes a 

decision based upon review of the data and documents on which CMS based 

its determination of nonconformance and any other documentation 

submitted by any of the parties within 65 days from the date on the 

notice.

    (5) Oral hearing. The hearing officer may provide for an oral 

hearing either on his or her own motion or in response to a party's 

request if the party demonstrates to the hearing officer's satisfaction 

that an oral hearing is necessary. Within 30 days of receipt of the 

request, the hearing officer gives all known parties written notice of 

the request and whether the request for oral hearing is granted.

    (b) Notice of time and place of oral hearing. If the hearing officer 

provides an oral hearing, he or she gives all known parties written 

notice of the time and place of the hearing at least 30 days before the 

scheduled date.

    (c) Prehearing discovery. (1) The hearing officer may permit 

prehearing discovery if it is requested by a party at least 10 days 

before the scheduled date of the hearing.

    (2) If the hearing officer approves the request, he or she--

    (i) Provides a reasonable time for inspection and reproduction of 

documents; and

    (ii) In ruling on discovery matters, is guided by the Federal Rules 

of Civil Procedure. (28 U.S.C.A. Rules 26-37)

    (3) The hearing officer's orders on all discovery matters are final.

    (d) Conduct of hearing. The hearing officer determines the conduct 

of the hearing, including the order in which the evidence and the 

allegations are presented.

    (e) Evidence at hearing. (1) The hearing officer inquires into the 

matters at



[[Page 403]]



issue and may receive from all parties documentary and other evidence 

that is pertinent and material, including the testimony of witnesses, 

and evidence that would be inadmissible in a court of law.

    (2) Evidence may be received at any time before the conclusion of 

the hearing.

    (3) The hearing officer gives the parties opportunity for submission 

and consideration of evidence and arguments and, in ruling on the 

admissibility of evidence, excludes irrelevant, immaterial, or unduly 

repetitious evidence.

    (4) The hearing officer's ruling on admissibility of evidence is 

final and not subject to further review.

    (f) Subpoenas. (1) The hearing officer may, either on his or her own 

motion or upon the request of any party, issue subpoenas for either or 

both of the following if they are reasonably necessary for full 

presentation of the case:

    (i) The attendance and testimony of witnesses.

    (ii) The production of books, records, correspondence, papers, or 

other documents that are relevant and material to any matter at issue.

    (2) A party that wishes the issuance of a subpoena must, at least 10 

days before the date fixed for the hearing, file with the hearing 

officer a written request that identifies the witnesses or documents to 

be produced and describes the address or location in sufficient detail 

to permit the witnesses or documents to be found.

    (3) The request for a subpoena must state the pertinent facts that 

the party expects to establish by the witnesses or documents and whether 

those facts could be established by other evidence without the use of a 

subpoena.

    (4) The hearing officer issues the subpoenas at his or her 

discretion, and CMS assumes the cost of the issuance and the fees and 

mileage of any subpoenaed witness, in accordance with section 205(d) of 

the Act (42 U.S.C. 405(d)).

    (g) Witnesses. Witnesses at the hearing testify under oath or 

affirmation, unless excused by the hearing officer for cause. The 

hearing officer may examine the witnesses and shall allow the parties to 

examine and cross-examine witnesses.

    (h) Record of hearing. A complete record of the proceedings at the 

hearing is made and transcribed in all cases. It is made available to 

the parties upon request. The record is not closed until a decision has 

been issued.

    (i) Sources of hearing officer's authority. In the conduct of the 

hearing, the hearing officer complies with all the provisions of title 

XVIII of the Act and implementing regulations, as well as with CMS 

Rulings issued under Sec. 401.108 of this chapter. The hearing officer 

gives great weight to interpretive rules, general statements of policy, 

and rules of agency organization, procedure, or practice established by 

CMS.