§ 405.1038 - Deciding a case without a hearing before an ALJ.

§ 405.1038 Deciding a case without a hearing before an ALJ.

Cross Reference

Link to an amendment published at 82 FR 5117, Jan. 17, 2017.

(a) Decision wholly fully favorable. If the evidence in the hearing administrative record supports a finding fully in favor of the appellant(s) on every issue , the ALJ and no other party to the appeal is liable for claims at issue, an ALJ or attorney adjudicator may issue a hearing decision without giving the parties prior notice and without holding a hearing. an ALJ conducting a hearing, unless CMS or a contractor has elected to be a party to the hearing in accordance with § 405.1012. The notice of the decision informs the parties that they have the right to a hearing and a right to examine the evidence on which the decision is based.

(b) Parties do not wish to appear.

(1) The An ALJ or attorney adjudicator may decide a case on the record and not conduct without an ALJ conducting a hearing if - if—

(i) All the parties who would be sent a notice of hearing in accordance with § 405.1020(c) indicate in writing that they do not wish to appear before the an ALJ at a hearing, including a hearing conducted by telephone or videoteleconferencingvideo-teleconferencing, if available; or

(ii) The appellant lives outside the United States and does not inform the ALJ OMHA that he or she wants to appear at a hearing before an ALJ, and there are no other parties who would be sent a notice of hearing in accordance with § 405.1020(c) and who wish to appear.

(2) When a hearing is not held, the decision of the ALJ or attorney adjudicator must refer to the evidence in the record on which the decision was based.

[70 FR 11472, Mar. 8, 2005, as amended at 74 FR 65336, Dec. 9, 2009

(c) Stipulated decision. If CMS or one of its contractors submits a written statement or makes an oral statement at a hearing indicating the item or service should be covered or payment may be made, and the written or oral statement agrees to the amount of payment the parties believe should be made if the amount of payment is an issue before the ALJ or attorney adjudicator, an ALJ or attorney adjudicator may issue a stipulated decision finding in favor of the appellant or other liable parties on the basis of the statement, and without making findings of fact, conclusions of law, or further explaining the reasons for the decision.

[82 FR 5117, Jan. 17, 2017]