423.2038—Deciding a case without a hearing before an ALJ.
(a) Decision wholly favorable.
If the evidence in the hearing record supports a finding in favor of the enrollee(s) on every issue, the ALJ may issue a hearing decision without giving the enrollee(s) prior notice and without holding a hearing. The notice of the decision informs the enrollee(s) that he or she has the right to a hearing and a right to examine the evidence on which the decision is based.
(b) Enrollee does not wish to appear.
(1)
The ALJ may decide a case on the record and not conduct a hearing if—
(i)
The enrollee indicates in writing or, for expedited hearings orally or in writing, that he or she does not wish to appear before the ALJ at a hearing, including a hearing conducted by telephone or video teleconferencing, if available. The ALJ hearing office must document all oral requests not to appear at a hearing in writing and maintain the documentation in the case files; or
(ii)
The enrollee lives outside the United States and does not inform the ALJ that he or she wants to appear.
(2)
When a hearing is not held, the decision of the ALJ must refer to the evidence in the record on which the decision was based.