manner prescribed in § 405.1540. Upon giving of such notice, the hearing examiner shall, except as otherwise provided, proceed to hearing on such new issues in the same manner as he would on an issue in which an initial and reconsidered determination had been made by the Administration and a hearing request with respect thereto had been filed.

(b) On the application of either party, or on his own motion, in lieu of considering any new issue in the manner described in the preceding paragraph, the hearing examiner may remand the case to the Bureau of Health Insurance for consideration of the new issue and, where appropriate, a determination. Where necessary the hearing examiner may direct that the case be returned to him for further proceedings. See also § 405.1560. [34 F.R. 20186, Dec. 24, 1969]

§ 405.1543 Joint hearings.

When two or more institutions, facilities, agencies, clinics, laboratories, or portable X-ray suppliers have requested hearings and the same or substantially similar matters are in issue, the hearing examiner may, if all parties agree, fix the same times and places for each prehearing conference or hearing and conduct all such procedings jointly. Where joint hearings are held, a single record of the proceedings shall be made and a separate decision issued with respect to each institution, facility, agency, clinic, laboratory, or portable X-ray supplier. [34 F.R. 20186, Dec. 24, 1969]

When reasonably necessary for the full presentation of a case, the hearing examiner may upon his own motion, or upon the request of a party to the hearing, issue subpoenas for the attendance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents which are relevant and material to any matter in issue at the hearing. A party which desires the issuance of a subpoena shall, not less than 5 days prior to the time fixed for a hearing, file with the hearing examiner a written request therefor, designating the witnesses or documents to be produced, and describing the address and location thereof with sufficient particularity to permit such witnesses or documents to be found. The request for A subpoena shall state the pertinent facts which the party expects to establish by such witnesses or documents and

whether such facts could be established by other evidence without the use of a subpoena. A subpoena issued under the provisions of this section shall be issued in the name of the Secretary of Health, Education, and Welfare. The Social Security Administration shall pay the cost of the issuance and the fees and the mileage of any witnesses so subpoenaed. as provided in section 205(d) of the Act § 405.1545 Conduct of the hearing.

The hearing shall be open to the representatives of the institution, facility, agency, clinic, laboratory, or portable Xray supplier and the representatives of the Bureau of Health Insurance, their technical advisors, and to such other persons as the hearing examiner deems necessary or proper. The hearing examiner shall inquire fully into all of the matters at issue (see § 405.1542) and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the hearing examiner believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing examiner may at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence. The order in which the evidence and the allegations shall be presented and the conduct of the hearing shall be at the discretion of hearing examiner.

134 F.R. 20186, Dec. 24, 1969]

§ 405.1546 Evidence.

Evidence may be received at the hearing even though inadmissible under the rules of evidence applicable to court procedure. The hearing examiner shall rule on the admissibility of evidence.

Witnesses at the hearing shall testify under oath or affirmation. The representative of each party shall be permitted to examine his own witnesses subject to interrogation by the representative of the other party. The hearing examiner may ask such questions as he deems necessary. He shall rule upon any objection made by either party as to the propriety of any question.

§ 405.1548 Oral and written summation.

The parties to a hearing shall be allowed a reasonable time for the presentation of an oral summation and for the filing of briefs or other written state

A complete record of the proceedings at the hearing shall be made and transcribed in all cases.

§ 405.1550 Waiver of right to appear and present evidence.

If the institution, facility, agency, clinic, laboratory, or portable X-ray supplier waives its right to appear before the hearing examiner and present testimony, it shall not be necessary for the hearing examiner to give notice of and conduct an oral hearing. A waiver of this right shall be made in writing and filed with the hearing examiner. A waiver may be withdrawn by an institution, facility, agency, clinic, laboratory, or portable X-ray supplier, for good cause shown, at any time prior to the mailing of notice of the decision in the case. Even though an institution, facility, agency, clinic, laboratory, or portable X-ray supplier has filed a waiver of a hearing before a hearing examiner, the hearing examiner may, nevertheless, give notice of a time and place and conduct a hearing if he believes that testimony of the representatives of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier or other persons is needed to clarify the facts in issue, or on a showing of good cause by the Bureau of Health Insurance of the need to present oral evidence. When such a waiver has been filed and no testimony received, the hearing examiner shall make a record of the relevant written evidence, including applications, written statements, certificates, affidavits, reports, and other documents which were considered in connection with the initial, reconsidered, or revised determination (see §§ 405.1502, 405.1514, and 405.1519), and whatever additional relevant and material evidence was submitted by the parties for consideration by the hearing examiner. Any additional evidence submitted by either party shall be furnished to the other party and that party shall be given a reasonable opportunity to submit further evidence in rebuttal. The parties may submit briefs or other written statements of evidence and/or proposed findings of fact or conclusions of law, copies of which shall be sent in accordance with § 405.1595. After the hearing examiner sets the case for

oral hearing and gives notice of the time and place set for the hearing, the request for hearing shall be dismissed in accordance with § 405.1552 where the institution, facility, agency, clinic, laboratory, or portable X-ray supplier fails to appear without good cause.

134 F.R. 20186, Dec. 24, 1969]

§ 405.1551 Dismissal of request for hearing.

The hearing examiner, at any time prior to the mailing of notice of the decision (see § 405.1557), may dismiss a hearing request where a party withdraws its request for a hearing or where the institution, facility, agency, clinic, laboratory, or portable X-ray supplier asks that its request be dismissed. An institution, facility, agency, clinic, laboratory, or portable X-ray supplier may request a dismissal by filing a written notice with the hearing examiner. [34 F.R. 20187, Dec. 24, 1969]

§ 405.1552 Dismissal by abandonment.

The hearing examiner may dismiss a request for hearing upon its abandonment by the institution, facility, agency, clinic, laboratory, or portable X-ray supplier on whose behalf it was filed. An institution, facility, agency, clinic, laboratory, or portable X-ray supplier may be deemed to have abandoned a request for hearing if the representative or proper official does not appear at the prehearing conference or hearing and prior to that time has not shown good cause as to why he could not appear; or, within 10 days after the mailing of a notice to the representative by the hearing examiner to show cause, did not show good cause for failing to appear or to notify the hearing examiner prior to the time for the prehearing conference or hearing that he could not appear. [34 F.R. 20187, Dec. 24, 1969]

§ 405.1553 Dismissal for cause.

On his own motion, or on the motion of a party to the hearing, the hearing examiner may dismiss a hearing request either entirely or as to any stated issue, under any of the following circumstances:

(a) Resjudicata. Where there has been a previous determination or decision by the Secretary with respect to the rights of the same institution, facility, agency, clinic, laboratory, or portable X-ray supplier on the same facts and law pertinent to the same issue or issues which has

become final either by judicial affirmance or, without judicial consideration, upon failure of the institution, facility, agency, clinic, laboratory, or portable X-ray supplier timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision.

(b) No right to hearing. Where the party requesting a hearing is not a proper party (see § 405.1531 (c)) or does not otherwise have a right to a hearing.

(c) Hearing request not timely filed. Where an institution, facility, agency, clinic, laboratory, or portable X-ray supplier has failed to file a hearing request timely and the time for filing such request has not been extended. [34 F.R. 20187, Dec. 24, 1969]

§ 405.1554 Notice of dismissal and right to request review thereof.

Notice of the hearing examiner's dismissal action shall be mailed to the parties. Such notice shall advise the institution, facility, agency, clinic, laboratory, or portable X-ray supplier of its right to request review by the Appeals Council as provided in §§ 405.1561 and 405.1562.

[34 F.R. 20187, Dec. 24, 1969]

§ 405.1555 Effect of dismissal.

The dismissal of a request for hearing shall be final and binding unless vacated (see 405.1556). § 405.1556

Vacation of dismissal of request for hearing.

On the request of a party filed within 60 days of the date of the mailing of the notice of dismissal, a hearing examiner or the Appeals Council may, for good cause shown, vacate any dismissal of a request for hearing.

§ 405.1557 Hearing examiner's decision.

As soon as practical after the close of the hearing, the hearing examiner shall issue a decision in the case. The decision shall be based upon the evidence of record. The decision shall be made in writing and contain separate numbered findings of fact and conclusions of law. A copy of the decision shall be mailed to the parties. § 405.1558 decision.

Effect of hearing examiner's

The hearing examiner's decision shall be final and binding unless reviewed by the Appeals Council or unless it is revised in accordance with § 405.1570.

At the request of the Bureau of Health Insurance and with the written or on the record concurrence of the other party to the hearing, the hearing examiner may remand any case properly before him to the Bureau of Health Insurance for a determination satisfactory to such other party. Such remand may be made at any time after the request for hearing and before mailing of the notice of decision. § 405.1561 Right to request a review of hearing examiner's decision or dismissal.

If the hearing examiner has issued a decision or dismissed a request for hearing, either of the parties thereto (see § 405.1532) may request the Appeals Council to review the decision or dismissal. The hearing examiner shall notify the parties of their right to request review by the Appeals Council of the decision or dismissal and the manner of making the request.

§ 405.1562 Time and place of filing requests for review.

(a) The request for review shall be made in writing and filed with the Appeals Council. The request shall be accompanied by whatever additional documents or other evidence the requesting party desires the Appeals Council to consider in its review and must be filed within 60 days from the date of mailing notice of the hearing examiner's dismissal or decision except where the time is extended for good cause.

(b) A request for review of a hearing examiner's decision shall contain a statement as to the specific issues or findings of fact and conclusions of law in the decision with which the party disagrees and the basis for its contention that the specific issues and/or findings or conclusions were incorrect.

§ 405.1563

Action by the Appeals Coun

cil on request for review.

The review or denial of the hearing examiner's decision shall be conducted by a panel of at least two members of the Appeals Council designated by the Chairman or Deputy Chairman and one person from the U.S. Public Health Service designated by the Surgeon General, Public Health Service, Department of Health, Education, and Welfare, or his delegate. Except as provided in § 4051568, the Appeals Council shall review the hearing examiner's decision or dismissal where an institution, facility, agency, clinic, laboratory, or portable X-ray supplier, files a request for review. The Appeals Council may dismiss, deny, or grant a request for review filed by the Bureau of Health Insurance. If the review is granted, the Appeals Council may either modify, affirm, or reverse the hearing examiner's decision. Notice of the action by the Appeals Council shall be mailed to the institution, facility, agency, clinic, laboratory, or portable X-ray supplier and the Bureau of Health Insurance.

[34 F.R. 20187, Dec. 24, 1969]

Evidence in addition to (a) that introduced at the hearing before the hearing examiner, or (b) documents before the hearing examiner where such hearing was waived, may not be admitted except where it appears to the Appeals Council that the evidence is relevant and material to an issue before it. Where it appears to the Appeals Council that additional relevant material is available, the Appeals Council shall require the production of such evidence. Before additional evidence is admitted into the record, notice that evidence will be received with respect to certain issues shall be mailed to the parties, and each party shall be given a reasonable opportunity to comment thereon and to present other

evidence which is relevant and material to the issues unless such notice is waived. Where the additional evidence is presented orally to a member of the Appeals Council, a transcript shall be made available to any party upon request.

§ 405.1566 Decision of the Appeals Council or remanding of case.

(a) When the Appeals Council reviews a hearing examiner's decision or order of dismissal, or if the case has been remanded by a court for further proceedings by the Secretary, the Appeals Council may either issue a decision or remand the case to a hearing examiner for a hearing and decision or recommended decision, which decision may be further reviewed as provided in this Subpart O. (b) In a case remanded to a hearing examiner, the hearing examiner shall initiate such additional proceedings and take such other actions as directed by the Appeals Council in its order of remand and he may take any additional action not inconsistent with the order of remand. Upon completion of all action called for by the order of remand and any other action initiated by the hearing examiner, the hearing examiner shall promptly make a decision (see § 405.1557) or, as directed by the Appeals Council, certify the case with a recommended decision to the Appeals Council for its decision. The parties shall have 20 days from the date of the notice of a recommended decision in which to submit any exception, objection and comment on the findings of fact, conclusions of law and recommended decision of the hearing examiner to the Appeals Council. Following the expiration of the 20 days, the Appeals Council will issue its decision adopting, confirming, modifying, or rejecting the recommended decision of the hearing examiner.

(c) Where the case is not remanded to a hearing examiner, the decision of the Appeals Council shall be based upon the evidence received into the hearing record and such further evidence as the Appeals Council may receive. This decision shall be made in writing and contain separate numbered findings of fact and conclusions of law. A copy of the decision shall be mailed to each party.

§ 405.1567 Effect of the Appeals Council decision.

The decision of the Appeals Council shall be final and binding unless a civil action (see § 405.1501 (b)) is filed by the

institution, facility, agency, or clinic in a district court of the United States as authorized by section 1869 (c) of the Act or unless the decision is revised in accordance with § 405.1570. (Section 1869 (c) of the Act does not grant judicial review of the Secretary's decision with respect to whether an independent laboratory or supplier of portable X-ray services meets the conditions for coverage, as required by Subparts M and N, respectively.)

[34 F.R. 20187, Dec. 24, 1969]

The Appeals Council may dismiss a request for review in any of the following circumstances:

(a) Upon request of party. Proceedings pending before the Appeals Council may be discontinued and dismissed upon written appliction of the party which filled the request for review.

(b) Request for review not timely filed. Request for review of a hearing examiner's dismissal or decision shall be dismissed when the party has failed to file a request for review within the time specifled and good cause was not established in accordance with § 405.1569 for such failure to file.

(c) Where the hearing examiner could have dismissed. The hearing examiner's decison may be set aside and the request for hearing dismissed for any reason for which it could have been dismissed by the hearing examiner.

$ 405.1569 Extension of time to request a hearing or review or begin civil action.

(a) Any institution, facility, agency, clinic, laboratory, or portable X-ray supplier which is a party to an initial determination described in § 405.1502 (b)(2) or (c); or to a reconsidered determination that it does not qualify as a provider of services or does not meet the conditions for coverage; or to a revised determination described in § 405.1519; or which is a party to a decision of a hearing examiner may request an extension of time for filing a request for hearing or review, as the case may be, although the time for filing the request has passed. If an extension of time for filing a request for hearing before a hearing examiner is sought, the request may be filed with the hearing examiner. In any other case, the request shall be

filed with the Appeals Council. The request shall be in writing and shall state the reasons why the request was not filed within the required time. An institution, facility, agency, or clinic which is a party to a decision of the Appeals Council, may ask the Appeals Council for an extension of time for commencing civil action in a district court within 60 days from the date of the notice of the Appeals Council action and shall state the reasons an extension is required. For good cause shown, the hearing examiner may extend the time for filing a request for hearing or the Appeals Council may extend the time for filing a request for review or civil action.

(b) An independent laboratory or supplier of portable X-ray services is not entitled to judicial review of the Secretary's final decision after the hearing and review.

[34 F.R. 20187, Dec. 24, 1969]

§ 405.1570 Reopening decisions of a hearing examiner or the Appeals Council.

A decision of a hearing examiner or of the Appeals Council which is otherwise final under § 405.1558 or § 405.1567 may be reopened within 60 days from the date of mailing notice of the decision by the hearing examiner or Appeals Council. Upon the motion of the hearing examiner or the Appeals Council, as the case may be, or upon the petition of any party to a hearing, the decision of a hearing examiner may be reopened by such hearing examiner, or by another hearing examiner if the hearing examiner who issued the decision is unavailable, or by the Appeals Council within the time prescribed above. A decision of the Appeals Council may be reopened only by the Appeals Council. For the purposes of this paragraph, a hearing examiner shall be considered to be unavailable if, among other circumstances, he has died, terminated his employment, is on leave of absence, has had a transfer of official station, or is unable to conduct a hearing because of illness.

§ 405.1571 Notice of revision.

(a) Where a hearing examiner or the Appeals Council proposes to revise a decision under § 405.1570, and the revision would be based on evidence not included in the record on which the said decision was based, the parties shall be given notice of the hearing examiner's or the Appeals Council's proposal to revise such