42 C.F.R. § 405.1875 Administrator's review.
Title 42 - Public Health
(a) General rule. (1) Except for a Board determination under §405.1842 that it lacks the authority to decide an issue, the Administrator, at his or her discretion, may review any final decision of the Board, including a decision under §405.1873 about the Board's jurisdiction to grant a hearing. The Administrator may exercise this discretion on his or her own motion, in response to a request from a party to a Board hearing or in response to a request from CMS. (2) The Office of the Attorney Advisory will examine the Board's decisions, the requests made by a party or CMS and any submission made in accordance with the provisions of this section in order to assist the Administrator in deciding whether to exercise this review authority. (b) Request for review. A party or CMS requesting the Administrator to review a Board decision must file a written request with the Administrator within 15 days of the receipt of the Board decision. (c) Criteria for deciding whether to review. In deciding whether to review a Board decision, either on his or her own motion or in response to a request from a party to the hearing or CMS, the Administrator will normally consider whether it appears that: (1) The Board made an erroneous interpretation of law, regulation or CMS Ruling; (2) The Board's decision is not supported by substantial evidence; or (3) The case presents a significant policy issue having a basis in law and regulations, and review is likely to lead to the issuance of a CMS Ruling or other directive needed to clarify a statutory or regulatory provision; (4) The Board has incorrectly assumed or denied jurisdiction or extended its authority to a degree not provided for by statute, regulation or CMS Ruling; and (5) The decision of the Board requires clarification, amplification, or an alternative legal basis for the decision. (d) Decision to review. (1) Whether or not a party or CMS has requested review, the Administrator will promptly notify the parties and CMS whether he or she has decided to review a decision of the Board and, if so, will indicate the particular issues he or she will consider. (2) The Administrator may decline to review a case or any issue in a case even if a party has filed a written request for review under paragraph (b) of this section. (e) Written submissions. (1) Within 15 days of receipt of a notice that the Administrator has decided to review a Board decision, a party or CMS may submit to the Administrator, in writing: (i) Proposed findings and conclusions; (ii) Supporting views or exceptions to the Board decision; (iii) Supporting reasons for the exceptions and proposed findings; and (iv) A rebuttal of the other party's request for review or other submissions already filed with the Administrator. (2) These submissions shall be limited to issues the Administrator has decided to review and confined to the record of the Board hearing. (3) A party or CMS, within 15 days of receipt of a notice that the Administrator has decided to review a decision, may also request that the decision be remanded and state reasons for doing so. Reasons for a request to remand may include new, substantial evidence concerning— (i) Issues presented to the Board; and (ii) New issues that have arisen since the case was presented to the Board. (4) A copy of any written submission made under this paragraph shall be sent simultaneously to each other party to the Board hearing and to CMS, if CMS has previously— (i) Requested that the Administrator review a Board decision or filed a written submission in response to a party's request for review. (ii) Responded to a party's request for review; or (iii) Submitted material after the Administrator has announced that he or she will review a Board decision. (f) Ex parte communications prohibited. All communications from any of the parties or CMS about a Board decision being reviewed by the Administrator must be in writing and must contain a certification that copies have been served on the parties and CMS, as appropriate. The Administrator will not consider any communication that does not meet these requirements or is not submitted within the required time limits. (g) Administrator's decision. (1) If the Administrator has notified the parties and CMS that he or she has decided to review a Board decision, the Administrator will affirm, reverse, modify or remand the case. (2) The Administrator will make this decision within 60 days after the provider received notification of the Board decision and will promptly mail a copy of the decision to each party and to CMS. (3) Any decision other than to remand will be confined to— (i) The record of the Board, as forwarded by the Board; (ii) Any materials submitted under paragraphs (b) or (e) of this section; and (iii) Generally known facts that are not subject to reasonable dispute. (4) The Administrator may rely on prior decisions of the Board, the Administrator and the courts, and other applicable law, whether or not cited by the parties and CMS. (h) Remand. (1) A remand to the Board by the Administrator vacates the Board's decision. (2) The Administrator may direct the Board to take further action with respect to the development of additional facts or new issues, or to consider the applicability of laws or regulations other than those considered by the Board. The following are not acceptable bases for remand— (i) Presentation of evidence existing at the time of the Board hearing that was known or reasonably could have been known; (ii) Introduction of a favorable court case that was either not available in print at the time of the Board hearing or was decided after the Board hearing; (iii) Change of a party's representation before the Board; (iv) Presentation of an alternative legal basis concerning an issue in dispute; or (v) Attempted retraction of a waiver of a right made before or at the Board hearing. (3) After remand, the Board will take the action requested in the remand action and issue a new decision. (4) The new decision will be final unless the Administrator reverses, affirms, modifies, or again remands the decision in accordance with the provisions of the section. [48 FR 45773, Oct. 7, 1983]
Title 42: Public Health
PART 405—FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED
Subpart R—Provider Reimbursement Determinations and Appeals
§ 405.1875 Administrator's review.
