---
kind: "section"
citation: "42 C.F.R. § 426.405"
title: "42"
number: "426.405"
heading: "Authority of the ALJ."
url: "https://uscodex.org/cfr/42/426.405"
---

# §426.405. Authority of the ALJ.

- (a) An ALJ conducts a fair and impartial hearing, avoids unnecessary delay, maintains order, and ensures that all proceedings are recorded.
- (b) An ALJ defers only to reasonable findings of fact, reasonable interpretations of law, and reasonable applications of fact to law by the Secretary.
- (c) **The ALJ has the authority to do any of the following—**
  - (1) **Review complaints by an aggrieved party (or aggrieved parties).**
  - (2) Dismiss complaints that fail to comply with [§ 426.400](/cfr/42/426.400.md).
  - (3) **Set and change the date, time, and place of a hearing upon reasonable notice to the parties.**
  - (4) **Continue or recess a hearing for a reasonable period of time.**
  - (5) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding.
  - (6) Consult with scientific and clinical experts on his or her own motion concerning clinical or scientific evidence.
  - (7) **Set schedules for submission of exhibits and written reports of experts.**
  - (8) **Administer oaths and affirmations.**
  - (9) **Examine witnesses.**
  - (10) **Issue subpoenas requiring the attendance of witnesses at hearings as permitted by this part.**
  - (11) Issue subpoenas requiring the production of existing documents before, and relating to, the hearing as permitted by this part.
  - (12) **Rule on motions and other procedural matters.**
  - (13) Stay the proceedings in accordance with [§ 426.340](/cfr/42/426.340.md).
  - (14) **Regulate the scope and timing of documentary discovery as permitted by this part.**
  - (15) **Regulate the course of a hearing and the conduct of representatives, parties, and witnesses.**
  - (16) Receive, rule on, exclude, or limit evidence, as provided in [§ 426.340](/cfr/42/426.340.md).
  - (17) **Take official notice of facts, upon motion of a party.**
  - (18) Decide cases, upon the motion of a party, by summary judgment when there is no disputed issue of material fact.
  - (19) Conduct any conference, argument, or hearing in person or, upon agreement of the parties, by telephone, picture-tel, or any other means.
  - (20) **Issue decisions.**
  - (21) Exclude a party from an LCD review for failure to comply with an ALJ order or procedural request without good cause shown.
  - (22) Stay the proceedings for a reasonable time when all parties voluntarily agree to mediation or negotiation, and provide mediation services upon request.
- (d) **The ALJ does not have authority to do any of the following under this part—**
  - (1) Conduct an LCD review or conduct LCD hearings on his or her own motion or on the motion of a nonaggrieved party.
  - (2) Issue a decision based on any new evidence without following [§ 426.340](/cfr/42/426.340.md), regarding procedures for review of new evidence.
  - (3) **Review any decisions by contractors to develop a new or revised LCD.**
  - (4) **Conduct a review of any draft, retired, archived, template, or suggested LCDs.**
  - (5) Conduct a review of any policy that is not an LCD, as defined in [§ 400.202](/cfr/42/400.202.md) of this chapter.
  - (6) **Conduct a review of any NCD according to section 1869(f)(1)(A)(i) of the Act.**
  - (7) Conduct a review of the merits of an unacceptable LCD complaint as discussed in [§ 426.410](/cfr/42/426.410.md).
  - (8) **Allow participation by individuals or entities other than—**
    - (i) The aggrieved party and/or his/her representative;
    - (ii) CMS and/or the contractor; and
    - (iii) **Experts called by the parties or the ALJ.**
  - (9) **Compel the parties to participate in a mediation process or to engage in settlement negotiations.**
  - (10) **Deny a request for withdrawal of a complaint by an aggrieved party.**
  - (11) Compel the contractor to conduct studies, surveys, or develop new information to support an LCD record.
  - (12) **Deny a contractor the right to reconsider, revise or retire an LCD.**
  - (13) **Find invalid applicable Federal statutes, regulations, rulings, or NCDs.**
  - (14) **Enter a decision specifying terms to be included in an LCD.**

## Notes

### Authority

Authority: Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh)

### Source

Source: 68 FR 63716, Nov. 7, 2003, unless otherwise noted.