---
kind: "range"
citation: "42 C.F.R. §§ 405.1819–405.1833"
title: "42"
from: "405.1819"
to: "405.1833"
count: 9
url: "https://uscodex.org/cfr/42/405.1819..405.1833"
---

# §405.1819. Conduct of contractor hearing.


The hearing shall be open to all parties thereto (see [§ 405.1815](/cfr/42/405.1815.md)) and to representatives of the contractor and of the Centers for Medicare & Medicaid Services (see [§ 405.1815](/cfr/42/405.1815.md)). The hearing officer(s) shall inquire fully into all of the matters at issue and shall receive into evidence the testimony and any documents which are relevant and material to such matters. If the hearing officer(s) believes that there is relevant and material evidence available which has not been presented at the hearing, he (they) may, at any time prior to the sending of notice of the decision, reopen the hearing record 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 the hearing officer(s).


# §405.1821. Prehearing discovery and other proceedings prior to the contractor hearing.

- (a) **Discovery rule: Time limits.**
  - (1) Limited prehearing discovery may be permitted by the contractor hearing officer(s) upon request of a party, provided the request is timely and the hearing officer(s) makes a preliminary finding of its jurisdiction over the matters at issue in accordance with [§ 405.1814(a)](/cfr/42/405.1814.md?p=a) of this subpart.
  - (2) A prehearing discovery request is timely if the request by a party is served no later than 120 days before the initially scheduled starting date of the contractor hearing, unless the contractor hearing officer(s) extends the time for requesting discovery.
  - (3) In the absence of a specific schedule for responses set by the contractor hearing officer(s), responses to interrogatories and requests for production of documents are due according to the schedule agreed upon by the party serving discovery and the party to which the discovery is directed. Responses by a party to interrogatories or requests for production of documents must be served no later than 45 days before the initially scheduled start of the contractor hearing, unless the contractor hearing officer(s) orders otherwise. Responses by a nonparty to requests for production of documents must be served no later than 75 days after the date the requests were served on the nonparty, unless the party requesting the documents and the nonparty to which the requests are directed agree on a different time for responding, or unless the contractor hearing officer(s) extends the time for responding.
  - (4) Before ruling on a request to extend the time for requesting discovery or for responding to discovery, the hearing officer(s) must give the other parties to the appeal and any nonparty subject to a discovery request a reasonable period to respond to the extension request.
  - (5) If the extension request is granted, the hearing officer(s) sets a new deadline and has the discretion to reschedule the hearing date.
- (b) **Discovery criteria—**
  - (1) **General rule.** The contractor hearing officer(s) may permit discovery of a matter that is relevant to the specific subject matter of the contractor hearing, provided the matter is not privileged or otherwise protected from disclosure and the discovery request is not unreasonable, unduly burdensome or expensive, or otherwise inappropriate. In determining whether to permit discovery, and in fixing the scope and limits of any discovery, the hearing officer(s) uses the Federal Rules of Civil Procedure and Rules [401](/cfr/42/401.md) and [501](/cfr/42/501.md) of the Federal Rules of Evidence for guidance.
  - (2) **Limitations on discovery.** Any discovery before the contractor hearing officer(s) is limited as follows:
    - (i) A party may request of another party, or of a nonparty other than CMS, HHS or any Federal agency, the reasonable production of documents for inspection and copying.
    - (ii) A party may request another party to respond to a reasonable number of written interrogatories.
    - (iii) A party may not request admissions, take oral or written depositions, or take any other form of discovery not permitted under this section.
- (c) **Discovery procedures. Rights of nonparties: Motions to compel or for protective order.**
  - (1) A party may request discovery of another party to the proceedings before the contractor hearing officer(s) or of a nonparty other than CMS, HHS or other Federal agency. Any discovery request filed with the contractor hearing officer(s) must be sent promptly to the party or nonparty from which the discovery is requested, and to any other party to the contractor hearing (as described in [§ 405.1815](/cfr/42/405.1815.md) of this subpart).
  - (2) If a discovery request is made of a nonparty to the contractor hearing, the nonparty has the rights any party has in responding to a discovery request. The rights of the nonparty include, but are not limited to, the right to select and use any attorney or other representative, and to submit discovery responses, objections, or motions to the hearing officer(s).
  - (3) Each party and nonparty is required to make a good faith effort to resolve or narrow any discovery dispute, regardless of whether the dispute is with another party or a nonparty.
    - (i) A party may submit to the contractor hearing officer(s) a motion to compel discovery that is permitted under this section, and a motion for a protective order regarding any discovery request may be submitted to the hearing officer(s) by a party or nonparty.
    - (ii) Any motion to compel or for protective order must include a self-sworn declaration describing the movant's efforts to resolve or narrow the discovery dispute. A self-sworn declaration describing efforts to resolve or narrow a discovery dispute also must be included with any response to a motion to compel or for a protective order.
    - (iii) **The hearing officer(s) must—**
      - (A) Decide the motion in accordance with this section and any prior discovery ruling; and
      - (B) Issue and send to each party and any affected nonparty a discovery ruling that grants or denies the motion to compel or for protective order in whole or in part; if applicable the discovery ruling must specifically identify any part of the disputed discovery request upheld and any part rejected, and impose any limits on discovery the hearing officer(s) finds necessary and appropriate. Nothing in this section authorizes the contractor hearing officer to compel any action from the Secretary or CMS.
- (d) **Reviewability of discovery or disclosure rulings—**
  - (1) **General rule.** A discovery ruling issued in accordance with [paragraph (c)(3)](#c-3) of this section, or a disclosure ruling (such as one issued at a hearing), is not subject to immediate review by a CMS official (as described in [§ 405.1834(b)(3)](/cfr/42/405.1834.md?p=b-3) of this subpart). A discovery ruling may be examined solely during the course of CMS review under [§ 405.1834](/cfr/42/405.1834.md) of this subpart of a jurisdictional dismissal decision (as described in [§ 405.1814(c)(2)](/cfr/42/405.1814.md?p=c-2) of this subpart) or a hearing decision (as described in [§ 405.1831](/cfr/42/405.1831.md) of this subpart) by the contractor hearing officer(s).
  - (2) **Exception.** To the extent a ruling authorizes discovery or disclosure of a matter for which an objection based on privilege or other protection from disclosure such as case preparation, confidentiality, or undue burden, was made before the contractor hearing officer(s), that portion of the discovery or disclosure ruling may immediately be reviewed by a CMS reviewing official in accordance with [§ 405.1834(b)(3)](/cfr/42/405.1834.md?p=b-3).
    - (i) Upon notice to the contractor hearing officer that the provider intends to seek immediate review of a ruling, or that the contractor or other affected nonparty intends to suggest that the Administrator through the CMS reviewing official, take own motion review of the ruling, the contractor hearing officer stays all proceedings affected by the ruling.
    - (ii) The contractor hearing officer must determine, under the circumstances of a given case, the length of any stay, but in no event may the stay be less than 15 days.
    - (iii) If the Administrator through the CMS reviewing official—
      - (A) Grants a request for review, or takes own motion review, of a ruling, the ruling is stayed until such time as the CMS reviewing official issues a written decision that affirms, reverses, modifies, or remands the contractor hearing officer's ruling.
      - (B) Does not grant review or take own motion review within the time allotted for the stay, the stay is lifted and the ruling is not subject to immediate review.
- (e) **Prehearing conference.** The contractor hearing officer(s) has discretion to schedule a prehearing conference. A prehearing conference may be conducted in person or telephonically, at the discretion of the contractor hearing officer(s). When a panel of contractor hearing officers is designated, the panel may appoint one or more hearing officers to act for the panel for any prehearing conference or any matter addressed at the conference.

# §405.1823. Evidence at contractor hearing.


Evidence may be received at the contractor hearing even though inadmissible under the rules of evidence applicable to court procedure. The hearing officer(s) shall give the parties opportunity for submission and consideration of facts and arguments, and during the course of the hearing, should in ruling upon admissibility of evidence, exclude irrelevant, immaterial, or unduly repetitious evidence. The hearing officer(s) shall render a final ruling on the admissibility of evidence.


# §405.1825. Witnesses at contractor hearing.


The hearing officer(s) may examine the witnesses and shall allow the parties and their representatives to do so. Parties to the proceedings may also cross-examine witnesses.


# §405.1827. Record of proceedings before the contractor hearing officer(s).

- (a) The contractor hearing officer(s) must maintain a complete record of all proceedings in an appeal.
- (b) The record consists of all documents and any other tangible materials timely submitted to the hearing officer(s) by the parties to the appeal and by any nonparty (as described in [§ 405.1821(c)](/cfr/42/405.1821.md?p=c) of this subpart), along with all correspondence, rulings, orders, and decisions (including the final decision) issued by the hearing officer(s).
- (c) The record must include a complete transcription of the proceedings at any contractor hearing.
- (d) A copy of the transcription must be made available to any party upon request.

# §405.1829. Scope of authority of contractor hearing officer(s).

- (a) The hearing officer(s) in exercising his authority must comply with all the provisions of title XVIII of the Act and regulations issued thereunder, as well as with CMS Rulings issued under the authority of the Administrator of the Centers for Medicare & Medicaid Services (as described in [§ 401.108](/cfr/42/401.108.md) of this chapter), and with the general instructions issued by the Centers for Medicare & Medicaid Services in accordance with the Secretary's agreement with the contractor.
- (b)
  - (1) If the contractor hearing officer(s) has jurisdiction to conduct a hearing on the specific matters at issue under [§ 405.1811](/cfr/42/405.1811.md), and the legal authority to fully resolve the matters in a hearing decision (as described in [§ 405.1831](/cfr/42/405.1831.md) of this subpart), the hearing officer(s) must affirm, modify, or reverse the contractor's findings on each specific matter at issue in the contractor or Secretary determination for the cost year under appeal.
  - (2) The contractor hearing officer(s) also may make additional revisions on specific matters regardless of whether the contractor considered the matters in issuing the contractor determination for the cost year, provided the hearing officer(s) does not consider or decide any specific matter for which it lacks jurisdiction (as described in [§ 405.1814(b)](/cfr/42/405.1814.md?p=b) of this subpart) or which was not timely raised in the provider's hearing request.
  - (3) The authority of the contractor hearing officer(s) under this paragraph to make the additional revisions is limited to those revisions necessary to fully resolve a specific matter at issue if—
    - (i) The hearing officer(s) has jurisdiction to grant a hearing on the specific matter under §§ [405.1811](/cfr/42/405.1811.md) and [405.1814](/cfr/42/405.1814.md) of this subpart; and
    - (ii) The specific matter was timely raised in an initial request for a contractor hearing filed in accordance with [§ 405.1811(b)](/cfr/42/405.1811.md?p=b) of this subpart or in a timely request to add issues to an appeal submitted in accordance with [§ 405.1811(c)](/cfr/42/405.1811.md?p=c) of this subpart.

# §405.1831. Contractor hearing decision.

- (a) If the contractor hearing officer(s) finds jurisdiction (as described in [§ 405.1814(a)](/cfr/42/405.1814.md?p=a) of this subpart) and conducts a hearing, the contractor hearing officer(s) must promptly issue a written hearing decision.
- (b) The contractor hearing decision must be based on the evidence from the contractor hearing (as described in [§ 405.1823](/cfr/42/405.1823.md) of this subpart) and other evidence as may be included in the record (as described in [§ 405.1827](/cfr/42/405.1827.md) of this subpart).
- (c) The decision must include findings of fact and conclusions of law on jurisdictional issues (as described in [§ 405.1814(c)(1)](/cfr/42/405.1814.md?p=c-1) of this subpart) and on the merits of the provider's reimbursement claims, and include appropriate citations to the record evidence and to the applicable law, regulations, CMS Rulings, and other interpretive rules, general statements of policy, and rules of agency organization, procedure, or practice established by CMS.
- (d) A copy of the decision must be sent promptly to the contractor, to each party and to the appropriate component of CMS (which currently is the Center for Medicare Management).
- (e) When the contractor's denial of the relief that the provider seeks before the contractor hearing officer(s) was based on procedural grounds (for example, the alleged failure of the provider to satisfy a time limit), or was based on the alleged failure to supply adequate documentation to support the provider's claim, and the contractor hearing officer(s) rule(s) that the basis of the contractor's denial is invalid, the contractor hearing officer(s) remands to the contractor for the contractor to make a determination on the merits of the provider's claim.

# §405.1832. Contractor hearing officer review of compliance with the substantive reimbursement requirement of an appropriate cost report claim.

- (a) **General.** In order to receive or potentially qualify for reimbursement for a specific item, the provider must include in its cost report an appropriate claim for the specific item (as prescribed in [§ 413.24(j)](/cfr/42/413.24.md?p=j) of this chapter). If the provider files an appeal to the contractor seeking reimbursement for a specific item and any party to such appeal questions whether the provider's cost report included an appropriate claim for the specific item, the contractor hearing officer(s) must address such questions in accordance with the procedures set forth in this section.
- (b) **Summary of procedures—**
  - (1) **Preliminary steps.** The contractor hearing officer(s) must give each party to the appeal an adequate opportunity to submit factual evidence and legal argument regarding the question of whether the provider's cost report included an appropriate claim for the specific item under appeal. Upon receipt of timely submitted factual evidence and legal argument (if any), the contractor hearing officer(s) must review such evidence and argument, and prepare written specific findings of fact and conclusions of law on the question of whether the provider's cost report complied with, for the specific item under appeal, the cost report claim requirements prescribed in [§ 413.24(j)](/cfr/42/413.24.md?p=j) of this chapter. In reaching such specific factual findings and legal conclusions, the contractor hearing officer(s) must follow the procedures set forth in [§ 413.24(j)(3)](/cfr/42/413.24.md?p=j-3) of this chapter for determining whether the provider's cost report included an appropriate claim for the specific item under appeal. The contractor hearing officer(s) must promptly give a copy of such written specific factual findings and legal conclusions to each party to the appeal, and such factual findings and legal conclusions must be included in the record of administrative proceedings for the appeal (as prescribed in [§ 405.1827](/cfr/42/405.1827.md)).
  - (2) **Limits on contractor hearing officer(s) actions.** The contractor hearing officer(s)'s specific findings of fact and conclusions of law (in accordance with [paragraph (b)(1)](#b-1) of this section) must not be invoked or relied on by the contractor hearing officer(s) as a basis to deny, or decline to exercise, jurisdiction over a specific item or take any other of the actions specified in [paragraph (c)](#c) of this section. Upon giving the parties to the appeal the contractor hearing officer(s)'s written specific factual findings and legal conclusions (pursuant to [paragraph (b)(1)](#b-1) of this section) on the question of whether the provider's cost report included an appropriate cost report claim for the specific item under appeal, the contractor hearing officer(s) must proceed to issue one of the two types of overall decisions specified in paragraphs [(d)](#d) and [(e)](#e) of this section with respect to the specific item. If the contractor hearing officer(s) issues an overall contractor hearing decision (as specified in [paragraph (d)](#d) of this section) regarding the specific item under appeal, the contractor hearing officer(s)'s written specific factual findings and legal conclusions (in accordance with [paragraph (b)(1)](#b-1) of this section) must be included in such overall contractor hearing decision regarding the specific item, along with the other matters that are required by the regulations for an overall contractor hearing decision. However, if the contractor hearing officer(s) issues an overall jurisdictional dismissal decision (as specified in [paragraph (e)](#e) of this section) regarding the specific item under appeal, the contractor hearing officer(s)'s written specific factual findings and legal conclusions (in accordance with [paragraph (b)(1)](#b-1) of this section) must not be included in the overall jurisdictional dismissal decision regarding the specific item. The contractor hearing officer(s) may permit reimbursement for the specific item under appeal, as part of an overall contractor hearing decision, but such reimbursement may be permitted only to the extent authorized by [paragraph (f)](#f) of this section.
- (c) **Prohibition of certain types of decisions, orders, and other actions.**
  - (1) If the contractor hearing officer(s) determines, in its findings of fact and conclusions of law (as prescribed by [paragraph (b)(1)](#b-1) of this section), that the provider's cost report did not include an appropriate claim for the specific item under appeal, the contractor hearing officer(s) may not—
    - (i) Deny jurisdiction over the specific item under appeal, based on (in whole or in part) the contractor hearing officer(s)'s factual findings and legal conclusions (reached under [paragraph (b)(1)](#b-1) of this section);
    - (ii) Decline to exercise jurisdiction over the specific item under appeal, based on (in whole or in part) the contractor hearing officer(s)'s factual findings and legal conclusions (reached under [paragraph (b)(1)](#b-1) of this section); or
    - (iii) Impose any sanction or take any other action against the interests of any party to the appeal except as provided in [paragraph (f)](#f) of this section, based on (in whole or in part) the contractor hearing officer(s)'s factual findings and legal conclusions (in accordance with [paragraph (b)(1)](#b-1) of this section).
  - (2) Regardless of whether the contractor hearing officer(s) determines, in its findings of fact and conclusions of law (as prescribed by [paragraph (b)(1)](#b-1) of this section), that the provider's cost report did or did not include an appropriate claim for the specific item under appeal, the contractor hearing officer(s) may not—
    - (i) Deny jurisdiction over the specific item under appeal, based on (in whole or in part) the absence, in the final contractor or Secretary determination under appeal, of an adjustment, revision, correction, or other change to the specific item under appeal, or the lack of a particular determination by the contractor or the Secretary regarding the specific item. Exception: If the provider's appeal of the specific item is based on a reopening of such item (pursuant to [§ 405.1885](/cfr/42/405.1885.md)) where the specific item is not revised, adjusted, corrected, or otherwise changed in a revised final contractor or Secretary determination, the contractor must deny jurisdiction over the specific item under appeal (as prescribed in §§ [405.1887(d)](/cfr/42/405.1887.md?p=d) and [405.1889(b)](/cfr/42/405.1889.md?p=b));
    - (ii) Decline to exercise jurisdiction over the specific item under appeal, based on (in whole or in part) the absence, in the final contractor or Secretary determination under appeal, of an adjustment, revision, correction, or other change to the specific item under appeal, or the lack of a particular determination by the contractor or the Secretary regarding the specific item; or
    - (iii) Impose any sanction or take any other action against the interests of any party to the appeal except as provided in [paragraph (f)](#f) of this section, based on (in whole or in part) the absence, in the final contractor or Secretary determination under appeal, of an adjustment, revision, correction, or other change to the specific item under appeal, or the lack of a particular determination by the contractor or the Secretary regarding the specific item.
- (d) **Contractor hearing decision must include any factual findings and legal conclusions under paragraph (b)(1) of this section.** If the contractor hearing officer(s) issues a hearing decision regarding the specific item under appeal (pursuant to [§ 405.1831](/cfr/42/405.1831.md)), any specific findings of fact and conclusions of law by the contractor hearing officer(s) (reached under [paragraph (b)(1)](#b-1) of this section), on the question of whether the provider's cost report included an appropriate claim for the specific item, must be included in such hearing decision along with the other matters prescribed by [§ 405.1831](/cfr/42/405.1831.md). The contractor hearing officer(s)'s factual findings and legal conclusions (in accordance with [paragraph (b)(1)](#b-1) of this section) about whether there was an appropriate cost report claim for the specific item under appeal are subject to the provisions of [§ 405.1833](/cfr/42/405.1833.md) just as those provisions apply to the other parts of the contractor hearing decision. If the contractor hearing officer(s) determines that the provider's cost report—
  - (1) Included an appropriate claim for the specific item under appeal (as prescribed in [§ 413.24(j)](/cfr/42/413.24.md?p=j) of this chapter), the contractor hearing decision also must address whether the other substantive reimbursement requirements for the specific item are also satisfied; or
  - (2) Did not include an appropriate claim for the specific item under appeal, the contractor hearing officer(s) has discretion whether or not to address in the contractor hearing decision whether the other substantive reimbursement requirements for the specific item are also satisfied.
- (e) **Contractor jurisdictional dismissal decision must not include factual findings and legal conclusions under paragraph (b)(1) of this section.** If the contractor hearing officer(s) issues a jurisdictional dismissal decision regarding the specific item under appeal (in accordance with [§ 405.1814(c)](/cfr/42/405.1814.md?p=c)), the contractor hearing officer(s)'s specific findings of fact and conclusions of law (in accordance with [paragraph (b)(1)](#b-1) of this section) on the question of whether the provider's cost report included an appropriate claim for the specific item must not be included in such jurisdictional dismissal decision.
- (f) Effects of the contractor hearing officer(s)'s factual findings and legal conclusions under [paragraph (b)(1)](#b-1) of this section when part of a final contractor hearing decision. If the contractor hearing officer(s) determines, as part of a final and binding contractor hearing decision (pursuant to [§ 405.1833](/cfr/42/405.1833.md) and paragraphs [(b)(1)](#b-1) and (d) of this section), that the provider's cost report—
  - (1) Included an appropriate claim for the specific item under appeal (as prescribed in [§ 413.24(j)](/cfr/42/413.24.md?p=j) of this chapter), the specific item is reimbursable in accordance with Medicare policy, but only if the contractor hearing officer(s) further determines in such final contractor hearing decision that all the other substantive reimbursement requirements for the specific item are also satisfied; or
  - (2) Did not include an appropriate cost report claim for the specific item under appeal, the specific item is not reimbursable, regardless of whether the contractor hearing officer(s) further determines in such final contractor hearing decision that the other substantive reimbursement requirements for the specific item are or are not satisfied.

# §405.1833. Effect of contractor hearing decision.


A contractor hearing decision issued in accordance with [§ 405.1831](/cfr/42/405.1831.md) of this subpart is final and binding on all parties to the contractor hearing and on the contractor, unless the hearing decision is reviewed by a CMS reviewing official in accordance with [§ 405.1834](/cfr/42/405.1834.md) of this subpart or reopened and revised by the contractor hearing officer(s) in accordance with [§ 405.1885](/cfr/42/405.1885.md) through [§ 405.1889](/cfr/42/405.1889.md) of this subpart. Final contractor hearing decisions are subject to the provisions of [§ 405.1803(d)](/cfr/42/405.1803.md?p=d) of this subpart.