CMS Pub. 100-08, ch. 3, § 3.9

(ALJ) Hearings

(Rev. 853, Issued: 01-04-19; Effective: 02-05-19; Implementation: 02-05-19)

This section in its entirety applies to MACs. This section applies to Recovery Auditors,

CERT, UPICs, and the SMRC, as indicated in their SOWs.

Overview:

Effective March 20, 2017 several changes were made to the regulations that outline the

activities related to contractor participation in ALJ hearings. Under the new regulations,

CMS contractors are limited to 3 roles in an ALJ hearing: a Participant, a Party, or a

Witness (defined in detail below). These changes are outlined in 42 CFR §405.1010 and

42 CFR §405.1012.

A physician overseeing participation shall be a current Contractor Medical Director

(CMD), a contractor employed physician or any combination thereof. Nurses and other

staff may assist the physician with the tasks described in this section. While the physician

is generally the primary individual overseeing and/or taking party or participant status, a

contractor may elect to have an attorney or clinician take party or participant status, or

another experienced qualified individual if approved by their COR. In either situation, the

contractor must be prepared to discuss details related to the facts of each claim under

appeal, the relevant coverage policies and payment requirements, including any

clarification required on decisions made earlier in the appeals process. For post-pay

audit/overpayment cases, the contractor must be prepared to discuss the background on

how the provider/supplier was selected for review, results of the sample case

adjudications, as well as matters related to the extrapolation methodology and/or

processes.

This section establishes expectations related to the contractor’s participation and

associated coordination activities, although CMS may provide additional guidance and

direction as needed. Further rules and procedures related to the ALJ hearing process are

contained in 42 CFR §405.1000.

The MAC shall capture and report the ALJ participation and party data in their monthly

status report to CMS. Contractors shall record the frequency of their support as a witness

in the narrative field of the monthly status reports. Contractors shall ensure that JOAs are

sufficient to support the ALJ hearing process and related coordination activities.

Role of the Participant:

In accordance with the revised regulation under 42 CFR Part §405.1010(c) and (d), all

contractors’ participation as a participant (i.e., non-party) shall be limited to submitting

written testimony and/or position papers (except in those instances when non-party

participants are able to provide testimony to clarify factual or policy issues in the case—

as noted in the scenario below).

The regulations do not prohibit multiple CMS contractors and/or related entities from

participating in the ALJ hearing as a participant. However, if no contractor or CMS

invokes party status, then the first entity to submit their election to participate as a non-party participant to the ALJ may participate in the oral hearing (limited to clarification of

factual or policy issues, as requested by the ALJ). All other entities may participate, but

are precluded from the hearing and may only submit written testimony and/or position

papers as indicated in 42 CFR §405.1010(d)(1) and (2). If the contractor is able to

participate in the hearing, they shall be adequately prepared to respond to questioning by

the ALJ regarding all issues related to the claims under appeal. Because participation

status does not include the same rights as full party status, the contractor may not call

witnesses or cross-examine witnesses of another party, as indicated in 42 CFR

§405.1010(c)(1).

(Note: At this time, CMS would not expect contractors to be responsible for clarifying

factual or policy issues for cases/claims outside of their jurisdiction.)

Role of the Party:

Contractors shall invoke party status in ALJ hearings in accordance with the regulatory

provisions in 42 CFR § 405.1012 and the CMS-prescribed prioritization process,

described below, for cases or items/services of interest to CMS. Under 42 CFR

§405.1012(d)(1), the first contractor to invoke party status with the ALJ is made the party

to the hearing. All other contractors who invoke party status for that particular hearing

are made participants and are precluded from the hearing (See Role of the Participant

section above).

Note: At this time, CMS would not expect contractors to be responsible for representing

cases/claims outside of their jurisdiction.

If the contactor is interested in a particular case, but is precluded from invoking party

status based on the CMS-prescribed prioritization of cases or otherwise, the contractor

may request ‘leave’ from the ALJ in accordance with 42 CFR §405.1012(d)(2). The

request for ‘leave’ process occurs outside of the Administrative Qualified Independent

Contractor (AdQIC) portal, described below. In submitting a request for ‘leave’ to the

ALJ, the contractor is formally requesting that the ALJ grant the contractor the right to be

a secondary party to the hearing. Requests for ‘leave’ to the ALJ shall also include the

reason(s) why the contractor believes that their presence as a secondary party in the ALJ

Hearing is necessary. The ALJ shall make the determination as to whether the contractor

is granted ‘leave.’ If this is approved, the contractor shall become a secondary party to

the hearing. Alternatively, if denied, the contractor may participate as a participant or as a

witness, based on the circumstance. (See Role of Witness section for additional

information).

As a party, the contractor is able to orally participate in the hearing and may file position

papers, call witnesses, and/or cross-examine witnesses of other parties. The contractor

shall submit any position paper or additional evidence requested by the ALJ in

accordance with 42 CFR §405.1012(c)(2)(i) and (ii). The contractor shall be adequately

prepared to respond to questioning by the ALJ or other parties regarding all issues related

to the claims under appeal. As a party to the hearing, contractors are subject to discovery

by the other party to the hearing in accordance with 42 CFR §405.1037.

For Notice of Hearings (NOHs) received that include issues deemed significant by CMS

or the contractor, the contractor shall, at a minimum:

• Invoke party status in ALJ cases per volume of ALJ cases funded for this activity;

• Participate in any pre-ALJ hearing conference calls, as needed, with other contractors

(as facilitated by the appropriate Qualified Independent Contractor (QIC));

• Coordinate with Medical Director(s) or related personnel from other contractors

intending to participate as consultants/expert witnesses, as necessary, in accordance

with 42 CFR §405.1010(d)(3). In addition, the MAC shall coordinate with other

contractors for those hearings in which they do not invoke party status, but decide to

participate as a consultant/expert witness; and/or,

• Participate in the hearings as a party via telephone, video teleconferencing, or in-person.

Role of the Witness:

If the ALJ declines the request for contractor ‘leave’ on a particular hearing, the

contractor may be called as a ‘witness’ by CMS or another CMS contractor that is a party

to the hearing. A determination regarding the need for a ‘witness’ by the participating

party shall be determined by the party and communicated to the contractor prior to the

hearing. Contractors should, at their discretion, participate as a ‘witness’ in any case in

which another CMS contractor and/or CMS has requested their support in a hearing.

Contractors shall notify the requesting party no later than 10 days prior to the scheduled

hearing in those instances in which contractors are unable to support the hearing as a

‘witness.’ As a ‘witness,’ contractors shall be tasked with supporting the party to the

hearing in responding to policy or factual issues related to a particular case through direct

examination and is subject to cross examination by the opposing party.

Note: Contractors who are interested in acting as a witness may indicate their interest via

the AdQIC Portal. CMS contractors may indicate interest in participating as a witness

without first making a request for ‘leave’ with an ALJ. Additionally, in accordance with

42 CFR §405.1020, witness designations/elections shall be made during the coordination

of interest/role selection process, as described below, and shall be included in the

response to a given NOH.

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