---
kind: "section"
citation: "42 C.F.R. § 478.40"
title: "42"
number: "478.40"
heading: "Beneficiary's right to a hearing."
url: "https://uscodex.org/cfr/42/478.40"
---

# §478.40. Beneficiary's right to a hearing.

- (a) **Amount in controversy.** If the amount in controversy is at least $200, a beneficiary (but not a provider or practitioner) who is dissatisfied with a QIO reconsidered determination may request a hearing by an administrative law judge (ALJ) of the Office of Medicare Hearings and Appeals (OMHA).
- (b) **Subject matter.** A beneficiary has a right to a hearing on the following issues:
  - (1) **Reasonableness of the services.**
  - (2) **Medical necessity of the services.**
  - (3) **Appropriateness of the setting in which the services were furnished.**
- (c) **Governing provisions.**
  - (1) The provisions of [subpart I of part 405](/cfr/42/part405-subpartI.md) of this chapter apply to hearings and appeals under this subpart unless they are inconsistent with specific provisions in this subpart or specified in [paragraph (c)(2)](#c-2) of this section. Except as provided in [paragraph (c)(2)](#c-2) of this section, references in [subpart I](/cfr/42/subpartI.md) to initial determinations made by a Medicare contractor and reconsiderations made by a QIC should be read to mean initial determinations and reconsidered determinations made by a QIO.
  - (2) The following [part 405](/cfr/42/part405.md) regulations, and any references thereto, specifically do not apply under this subpart:
    - (i) [Section 405.950](/cfr/42/405.950.md) (time frames for making a redetermination).
    - (ii) [Section 405.970](/cfr/42/405.970.md) (time frames for making a reconsideration following a contractor redetermination, including the option to escalate an appeal to the OMHA level).
    - (iii) [Section 405.1016](/cfr/42/405.1016.md) (time frames for deciding an appeal of a QIC reconsideration, or escalated request for a QIC reconsideration, including the option to escalate an appeal to the Council).
    - (iv) The option to request that an appeal be escalated from the OMHA level to the Council as provided in [§ 405.1100(b)](/cfr/42/405.1100.md?p=b), and time frames for the Council to decide an appeal of an ALJ's or attorney adjudicator's decision or an appeal that is escalated from the OMHA level to the Council as provided in § [405.1100(c)](/cfr/42/405.1100.md?p=c) and [(d)](/cfr/42/405.1100.md?p=d).
    - (v) [Section 405.1132](/cfr/42/405.1132.md) (request for escalation to Federal court).
    - (vi) Sections [405.956(b)(8)](/cfr/42/405.956.md?p=b-8), [405.966(a)(2)](/cfr/42/405.966.md?p=a-2), [405.976(b)(5)(ii)](/cfr/42/405.976.md?p=b-5-ii), [405.1018(c)](/cfr/42/405.1018.md?p=c), [405.1028(a)](/cfr/42/405.1028.md?p=a), and [405.1122(c)](/cfr/42/405.1122.md?p=c), and any other reference to requiring a determination of good cause for the introduction of new evidence by a provider, supplier, or a beneficiary represented by a provider or supplier.

## Notes

### Amendments

[50 FR 15372, Apr. 17, 1985; 50 FR 41887, Oct. 16, 1985. Redesignated at 64 FR 66279, Nov. 24, 1999; 82 FR 5139, Jan. 17, 2017]

### Source

Source: 50 FR 15372, Apr. 17, 1985, unless otherwise noted. Redesignated at 64 FR 66279, Nov. 24, 1999.

### Authority

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

### Amendments

[50 FR 15372, Apr. 17, 1985; 50 FR 41887, Oct. 16, 1985. Redesignated at 64 FR 66279, Nov. 24, 1999; 82 FR 5139, Jan. 17, 2017]