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Department of Health and Human Services
Medicare Appeals Council
Marshall Lane Manor

Hospital Insurance Benefits (Part A)

R.C., Decd.


Empire Medicare Services (Contractor)



The Administrative Law Judge (ALJ) issued a decision dated March 25, 2005. The appellant has asked the Medicare Appeals Council to review this action.

The Council grants the request for review because there is an error of law and the action, findings or conclusions of the ALJ are not supported by substantial evidence. 20 C.F.R. �� 404.967 and 404.970, incorporated by reference in 42 C.F.R. � 405.724. The Council hereby vacates the hearing decision and remands this case to an ALJ for further proceedings, including a new decision. See 20 C.F.R. � 404.977.


The fiscal intermediary issued a reconsidered determination dated December 3, 2004, for services provided by the appellant skilled nursing facility to the beneficiary during the period July 7, 2004, through August 5, 2004. (1) The intermediary first determined that these services were not covered by Medicare, as the beneficiary's post-mastectomy incision had healed, she ate well and walked without assistance while using a cane, her vital signs were stable, and she left the facility for outings with her son. The intermediary then determined that the provider was liable for the cost of the noncovered services, since a notice of noncoverage contained in the record was "invalid, because the second page of the notice was not in the file."

The Center for Medicare Advocacy (CMA), acting on behalf of the State of Connecticut Department of Social Services as subrogee for the beneficiary, appealed the reconsidered determination in a request for hearing dated December 21, 2004. CMA listed the dates of services as July 7, 2004, through September 29, 2004, and stated the issue as whether the "[s]ervices . . . are coverable under the Medicare Act." CMA indicated that it wished to appear in person before the ALJ for the hearing and declined the option to waive appearance and obtain a decision on the record. (2)

The intermediary acknowledged receipt of the request for hearing by letter dated January 6, 2005, with a copy ("cc:") sent to the appellant. The letter stated that the Office of Hearings and Appeals (OHA) would contact CMA concerning the hearing. The record contains no form Notice of Medicare Hearing to either CMA or the appellant with a hearing date and time. The record also contains no further argument or evidence submitted by either party.


The ALJ decision first provides that "[a] hearing was not deemed necessary in the present matter, because it was determined that a decision that was fully favorable to the appellant [CMA] could be reached based on the documentary evidence." Dec. at 1. The ALJ then decided that "Medicare covers the cost of the services rendered to the beneficiary during the period at issue." Id.

In reaching this decision, the ALJ discussed the opinion of Dr. M. S. an independent medical expert who the ALJ stated had reviewed the record evidence. Dec. at 3. The ALJ noted that Dr. S. rendered his opinion "in response to interrogatories dated March 14, 2005" that the beneficiary required and received daily skilled nursing care for multiple medical problems, including a post-mastectomy inflammation. Id. The ALJ concluded that he gave "significant weight to Dr. S.'s opinion, which is consistent with the overall documentary evidence of record." Id.

The appellant provider filed a timely request for review, asserting that the beneficiary did not receive a covered level of care. The appellant represents that there were no treatments or physician orders to support the need for skilled nursing services, that the beneficiary received no skilled services, and that she was not in need of any skilled services.


The Council finds that the decision of the ALJ is not supported by substantial evidence. The ALJ cites the opinion of Dr. S. as the evidentiary basis for his conclusion that the services provided were skilled and, thus, covered by Medicare. He states that Dr. S. provided this opinion in response to interrogatories. When a case is decided without an oral hearing, the ALJ "shall make a record of the material evidence," including documentary evidence used in reaching the decision. 42 C.F.R. � 405.701(c), 20 C.F.R. � 404.948(b)(2). "The [ALJ] decision must be based on evidence offered at the hearing or otherwise included in the record." 20 C.F.R. � 404.953. However, the record contains no written interrogatories and no responses from Dr. S.

In addition, the ALJ erred as a matter of law in not affording the parties the opportunity to review the proposed interrogatories and Dr. S's responses. The Associate Commissioner of the OHA of the Social Security Administration has issued the Hearings, Appeals and Litigation Law (HALLEX) manual as the administrative guide for ALJ hearings. HALLEX provides that an ALJ may obtain the opinion of a medical expert by written interrogatory when "a claimant has waived his or her right to a hearing and requested an on-the-record decision." HALLEX I-2-5-30. Before submitting written interrogatories to the medical expert, the ALJ must first provide them to the parties to allow objection or the proposal of additional interrogatories. HALLEX I-2-5-42 C. The ALJ must also afford the parties the opportunity to comment on the medical experts' response. HALLEX I-2-5-44. The ALJ did not follow any of these procedures.

Although procedures prescribed by HALLEX do not directly apply to ALJs in the Office of Medicare Hearings and Appeals of the United States Department of Health and Human Services, to whom the Council will remand this case, the Council concludes that these procedures comport with basic standards of due process. Under the governing regulations, any party has the right to examine the evidence, submit new evidence, present and question witnesses, and enter written statements about the facts and law. See, 20 C.F.R. �� 404.929, 404.949, and 404.950(a) and (e). See, also, 5 U.S.C. � 556 (Administrative Procedure Act (APA))("A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts") and Richardson v. Perales, 402 U.S. 489 (1971)(Social Security Act administrative procedure does not vary from the APA).

Further, the record contains no writing from either CMA or the appellant waiving the right to appear before the ALJ at an oral hearing. See 20 C.F.R. � 404.948(b)(1)(1). As provided in 20 C.F.R. � 404.948(b)(2), the ALJ's notice of decision should have advised the parties that they had the right to an oral hearing and to examine the evidence on which the decision is based.

The Council therefore remands for further proceedings.


On remand, the ALJ shall:

1. Afford the parties the opportunity for a hearing, providing appropriate notice to the parties and allowing the parties to submit written statements or evidence prior to or during the hearing on any of the relevant issues.

2. Obtain from all parties written waivers of the right to appear before the ALJ at an oral hearing, under 20 C.F.R. � 404.948, if both parties elect a decision on the record without a hearing.

3. Mark all documents in the record as exhibits and prepare an exhibit list.

The ALJ may take further action not inconsistent with this order.


DATE: November 25, 2005


Clausen J. Krzywicki
Administrative Appeals Judge

Thomas E. Herrmann
Administrative Appeals Judge


1. This decision does not cite to specific exhibits, as the ALJ did not designate or mark any documents as exhibits in compiling the administrative record.

2. This option, reflected on the form "Request for Part A Medicare Hearing by an Administrative Law Judge" filed by CMA, includes a parenthetic instruction to "Complete Waiver Form HA-4608." The record contains no such waiver form.