405.1000—Hearing before an ALJ: General rule.
(a)
If a party is dissatisfied with a QIC's reconsideration or if the adjudication period specified in § 405.970 for the QIC to complete its reconsideration has elapsed, the party may request a hearing.
(b)
A hearing may be conducted in-person, by video-teleconference (VTC), or by telephone. At the hearing, the parties may submit evidence (subject to the restrictions in § 405.1018 and § 405.1028 ), examine the evidence used in making the determination under review, and present and/or question witnesses.
(c)
In some circumstances, a representative of CMS or its contractor may participate in or join the hearing as a party. (See, § 405.1010 and § 405.1012.)
(e)
If all parties to the hearing waive their right to appear at the hearing in person or by telephone or video-teleconference, the ALJ may make a decision based on the evidence that is in the file and any new evidence that is submitted for consideration.
(f)
The ALJ may require the parties to participate in a hearing if it is necessary to decide the case. If the ALJ determines that it is necessary to obtain testimony from a non-party, he or she may hold a hearing to obtain that testimony, even if all of the parties have waived the right to appear. In that event, however, the ALJ will give the parties the opportunity to appear when the testimony is given, but may hold the hearing even if none of the parties decide to appear.
(g)
An ALJ may also issue a decision on the record on his or her own initiative if the evidence in the hearing record supports a fully favorable finding.
[70 FR 11472, Mar. 8, 2005, as amended at 74 FR 65334, Dec. 9, 2009]