By Reynaldo T. Acosta, Esq., Head of Litigation, Vitale, Suarez & Associates, P.A. · Miami Lakes, Florida
A Medicare ALJ hearing is where the record you built at the first two levels is finally argued in front of someone who decides the case without deferring to the contractor. It is also the level where the pause on recoupment is gone. Both facts shape how you prepare.
If you run a practice, clinic, laboratory, or facility whose reconsideration was affirmed, you need to know what the request must say, what the evidence rules allow, how the hearing is actually conducted, and what the clock does to your cash while you wait. Those four answers decide whether the hearing improves your position or only extends the debt.
In plain terms, an ALJ hearing is the third level of the Medicare Part A and Part B appeal process in 42 C.F.R. Part 405, Subpart I. It is conducted by an administrative law judge at the Office of Medicare Hearings and Appeals (OMHA), or in some cases decided by an attorney adjudicator without a hearing. The article on the Medicare overpayment appeal process shows how the five levels fit together.
What the ALJ Reviews and How
A party that is dissatisfied with a QIC reconsideration, or whose QIC deadline has passed without a decision, may request an ALJ hearing. The hearing can be held in person, by video teleconference, or by telephone, and parties may submit evidence, review the evidence used in the decision under appeal, and present or question witnesses (42 C.F.R. § 405.1000).
The standard of review matters. The ALJ or attorney adjudicator conducts a de novo review and decides on the administrative record, which includes any hearing record (§ 405.1000(d)). In plain terms, the ALJ is not asking whether the QIC made a reasonable choice. The ALJ is deciding the claim on the record in front of the ALJ.
That is a real opening for you. It is also narrower than it sounds, because the record is shaped by the evidence rules discussed below, and because CMS policy binds the ALJ in some ways and not in others.
Before You Request a Hearing
The 60-Day Request
A request for an ALJ hearing must be filed within 60 calendar days of receiving the notice of the QIC’s reconsideration or dismissal (42 C.F.R. § 405.1014(c)(1)). The text of § 405.1014 that this article reviewed does not state a presumption of receipt, so do not borrow the five-day presumption from other levels. Count from the date you can prove you received the notice. If the deadline has passed, a good-cause extension is provided in § 405.1014(e), and the article on good cause for a late Medicare appeal covers what it needs.
The request must be in writing and must identify the beneficiary, the appeal number, the dates of service, and the reasons you disagree. It must also state any additional evidence you plan to submit and the date you will submit it, and you must send a copy of the request to the other parties (§ 405.1014(a), (d)). If a non-beneficiary appellant does not send the copy, the rule gives a second opportunity, and a second failure leads to dismissal (§ 405.1014(d)(3)).
The Amount in Controversy
An ALJ hearing requires a minimum amount in controversy. For calendar year 2026 it is $200, as set in Federal Register document 2025-21879, and the same figure applies for 2027 under Federal Register document 2026-19016. For overpayments, the amount is the amount in the demand letter or, when extrapolation was used, the extrapolated total (42 C.F.R. § 405.1006(d)). Where individual claims are small, the rules allow claims to be aggregated, and the article on aggregate claims in a Medicare appeal covers that.
Recoupment Does Not Wait
The pause on recoupment that applied during the redetermination and the reconsideration does not reach the ALJ level. Under 42 C.F.R. § 405.379, an appeal to the ALJ, the Council, or federal court does not stop recovery, which remains in effect as provided in § 405.373(e). Recovery continues until the earliest of payment of the overpayment and interest in full, a satisfactory settlement agreement with the contractor, or a determination that no overpayment exists.
Plan the cash before you plan the hearing. The article on Medicare appeal deadlines covers the dates, and the article on a Medicare extended repayment schedule covers the one tool that may soften the cash impact.
The Evidence Rules at This Level
The evidence rule is the rule that decides most hearings before they start. In plain terms, it asks you to put everything in the record early, and it penalizes evidence that arrives late.
Under 42 C.F.R. § 405.1018, you submit all evidence you want considered with the hearing request, by the date you stated in the request. If a hearing has been scheduled, further evidence is due within 10 calendar days of receiving the notice of hearing. Evidence that arrives later extends OMHA’s decision period by the number of days between the end of that window and the day it is received.
Evidence from a provider that was not submitted before the reconsideration needs more. It must come with a statement explaining why it was not previously submitted, and without that statement it will not be considered (§ 405.1018(c)). The ALJ then decides whether you had good cause for submitting the evidence for the first time at OMHA, and if not, the evidence must be excluded (42 C.F.R. § 405.1028). If a hearing is held, the ALJ must tell the parties, no later than the start of the hearing, whether the evidence will be considered. The article on new evidence in a Medicare appeal covers what the statement must say.
The control that matters is the evidence calendar, not the hearing date. A provider that tracks the hearing and ignores the evidence cutoff has a control that exists on paper only.
What Happens at the Hearing
The Notice of Hearing
The ALJ sets the time and place of the hearing and sends a notice of hearing to the parties and others listed in the rule. The recipients are asked to say whether they will attend, whether they object to the time or place, and who will testify (42 C.F.R. § 405.1020). Treat the notice as a deadline document. It starts the 10-day evidence window, and it starts the clock on any objection.
The Format
The rule sets defaults for how the hearing is conducted. An unrepresented beneficiary who requested the hearing is generally directed to video teleconference when available. Other individuals, including providers, are generally directed to appear by telephone. A video teleconference requires a finding that it is necessary to examine the facts or issues, and an in-person hearing is subject to similar limits (§ 405.1020(b)).
If you object to the time, place, or format, the objection must be in writing, made at the earliest opportunity before the hearing, state the reason, and propose a time and place. Oral requests are limited to emergencies the day before or the day of the hearing. An objection to a telephone or video hearing must be in writing and must request a video or in-person hearing, with reasons (§ 405.1020(e), (i)). Good cause is generally required for an in-person hearing.
Rescheduling is also tied to good cause. The rule lists examples such as a serious physical or mental condition, a death in the family, and severe weather that makes travel impossible, and it weighs other reasons by the justification and facts offered. When a hearing is postponed at the appellant’s request for those reasons, the delay is not counted toward the adjudication period (§ 405.1020(f)-(h)).
Presenting the Case
At the hearing, a party may appear, offer evidence, and state its position. A representative may appear for the party, and witnesses may testify under oath or affirmation unless the ALJ excuses them for an important reason. The ALJ may ask relevant questions, and the parties or their representatives may question witnesses. The ALJ may receive evidence that a court would not admit under its rules of evidence (§ 405.1036).
A party or representative may also submit a written summary or written statements about the facts and the law, with copies to the other parties. The ALJ may issue subpoenas for witnesses and documents when reasonably necessary, but cannot subpoena CMS or its contractors (§ 405.1036(c), (f)).
CMS and Its Contractors
CMS or a contractor can join the proceeding as a participant. A participant may file position papers or written testimony on factual or policy issues but cannot call or cross-examine witnesses. The ALJ cannot require participation and cannot draw an adverse inference if CMS or a contractor declines (§ 405.1010). CMS or a contractor may also elect to be a party under § 405.1012, which changes who can do what at the hearing, so read the notice of hearing for who has elected to appear.
A Hearing Is Not Always Held
A party may waive appearance by written statement, and if every party entitled to notice does, the case can be decided on the file and any new evidence. The ALJ may still require a hearing if testimony is needed from a non-party, and can proceed even if no party attends (§§ 405.1000(e)-(f), 405.1036(b)). An ALJ or attorney adjudicator may also decide the case without a hearing when the record fully supports the appellant on every issue and no other party is liable, unless CMS or a contractor has elected to be a party (§ 405.1038(a)). And if CMS or a contractor states that the service should be covered or that payment may be made, the adjudicator may issue a decision for the appellant on that basis (§ 405.1038(c)).
Which Policies Bind the ALJ
The ALJ does not treat every CMS source the same way. National coverage determinations bind the ALJ, the attorney adjudicator, and the Council, who cannot disregard or invalidate them but may review the facts to decide whether the NCD applies (42 C.F.R. § 405.1060). Local coverage determinations and program guidance do not bind the ALJ, but the ALJ must give them substantial deference where they apply and must explain a departure; the ALJ cannot review the validity of an LCD (§ 405.1062). Medicare and Medicaid statutes and regulations bind the ALJ (§ 405.1063). The article on LCD and NCD arguments in a Medicare appeal covers how that shapes the argument.
How to Prepare for the Hearing
Step 1: calendar the 60-day request and the recoupment dates together
Record the date you received the reconsideration notice, the 60-day deadline, and the recoupment position. A request that is on time and a cash plan that is not leaves you protected in only one direction.
Step 2: confirm the amount in controversy
Check the amount in the demand letter against the threshold, and decide whether aggregation applies before you file.
Step 3: finish the evidence record before you file
File the complete record with the request. Draft the statement for each item that was not before the QIC, tied to a situation in § 405.1028(a)(2).
Step 4: draft the request to the rule
Identify the beneficiary, the appeal number, the dates of service, and the reasons you disagree, state the additional evidence and its date, and send a copy to the other parties.
Step 5: respond to the notice of hearing on time
Answer whether you will attend, state any objection in writing, and name your witnesses. Calendar the 10-day window from your proof of receipt.
Step 6: prepare the witnesses and the written statement
Decide who will testify, what each will say, and what documents each will rely on. Prepare a short written statement of the facts and the law to submit with copies to the other parties.
Step 7: plan for the decision and the next 60 days
The decision opens a new 60-day window for the Council, and recoupment continues throughout. Decide in advance what you will do on either outcome.
OMHA’s Decision Period and Escalation
OMHA has 90 calendar days from receipt of a timely request to decide, or 180 days when the case arrives by escalation from the QIC (42 C.F.R. § 405.1016). The statute behind the 90-day period is 42 U.S.C. § 1395ff(d)(1)(A). If the ALJ does not decide in time, only the party that filed the request can ask to escalate the case to the Council.
The rule sets a decision period. It does not tell you how long your file will wait. OMHA’s workload page describes its backlog in general terms and gives no processing time you can plan around, so a cash plan that assumes the 90 days is built on the rule and not on the queue. A remedy outside the appeal ladder for a file that stalls well beyond the period is discussed in the article on a writ of mandamus to resolve unreasonable appeal delays.
The Decision and What Comes After
When the ALJ or attorney adjudicator decides, the written decision must contain findings of fact, conclusions of law, and the reasons, and it must rest on the evidence in the record. It must give the specific reasons, summarize relevant clinical or scientific evidence, discuss any new evidence first submitted at the OMHA level together with the good-cause determination, and explain how to appeal to the Council (42 C.F.R. § 405.1046(a)).
The amount the contractor then determines to carry out the decision is a new initial determination, and the adjudicator’s payment amount does not bind the contractor (§ 405.1046(a)(3)). If you disagree with the decision, the next level is Council review, with a request due within 60 days of receiving the decision, and the article on Medicare Appeals Council review covers it.
Common Provider Mistakes at the ALJ Level
Treating the Hearing as the Place to Build the Record
The record is built before the hearing, with the request and within the 10-day window. A provider that saves its strongest exhibit for the hearing may find that the statement requirement and the good-cause test have already decided whether the ALJ can consider it. By the time the notice of hearing is in your hands, the options for adding to the record have already narrowed.
Assuming the Appeal Pauses Recoupment
The pause that applied at the first two levels does not reach this one. A provider that files the request and assumes the cash is safe has traded a delay for an offset.
Counting the 60 Days From the Wrong Date
The text of § 405.1014 does not state a presumption of receipt. Count from the date you can prove, and keep proof of how and when the notice arrived.
Ignoring the Notice of Hearing
The notice triggers the evidence window and the objection process. An objection to the format that is not in writing, or not made at the earliest opportunity, may not be considered.
Making Informal Explanations That Become Admissions
A casual comment such as “the physician never really reviewed that chart,” “we billed it that way because everyone does,” or “we did not have a process for that” can later be cited as evidence of knowledge or systemic failure. Calls to the contractor, emails to OMHA, and cover letters are part of the record. Your written request and statement are part of the evidentiary record.
Troubleshooting: When the Hearing Does Not Go as Planned
If the notice of hearing arrives and you cannot attend on the date, ask for a change in writing and give the reason, tied to a reason the rule recognizes. If a key witness is unavailable, say so early and name the witness and the testimony. If CMS or a contractor has elected to appear, read the notice for what role it has taken, because a party and a participant have different rights.
If the ALJ excludes evidence, read the decision for the good-cause finding. The decision is required to discuss the good-cause determination for new evidence first submitted at OMHA, and that discussion is the starting point for any argument to the Council.
Expected Outcome: A Record That Can Be Defended Above You
A well-prepared ALJ hearing produces a record with a complete evidence set, a statement for every late item, a written account of the facts and the law, and an objection history that shows what you raised and when. That record is also the record the Council will use. A weak one does not improve with the next level.
30-Day, 90-Day, and Ongoing Priorities
- Next 30 days. Calendar the 60-day request and the recoupment dates. Confirm the amount in controversy. Complete the evidence record and draft the statements.
- Next 90 days. Prepare witnesses and the written statement. Build an exhibit index tied to each claim. Decide how the cash plan will handle recoupment through the decision.
- Ongoing. Track the notice of hearing, the 10-day window, and the Council deadline. Review the amount-in-controversy figures each December, because the thresholds are updated annually.
When Counsel Should Be Involved
An ALJ hearing is the first level at which testimony, subpoenas, and cross-examination of the record are part of the process, and it is the level that sets the record for everything above it. If the determination rests on a statistical sample, if the claim turns on a coverage policy, if CMS or a contractor has elected to participate or to be a party, or if recoupment is already running, legal review before the request is filed can shape the rest of the case. If counsel directs the review, communications about legal exposure may be better protected under the attorney-client privilege than informal email among billing and operations staff, where the privilege applies. These matters are described on the pages for Medicare and Medicaid overpayments and defense investigations, and the practice areas page lists the rest.
These rules are federal and apply wherever the demand originates.
The practical decision rule is simple: if the evidence is not in the file when the request is filed, if the recoupment calendar is not funded, or if you cannot say which of the five situations in § 405.1028(a)(2) explains each late item, the hearing is not prepared. Prepare the record before the hearing, not at it.
Frequently Asked Questions
What is a Medicare ALJ hearing?
It is the third level of the Medicare Part A and Part B appeal process. An administrative law judge at OMHA reviews the case de novo on the administrative record after a QIC reconsideration (42 C.F.R. § 405.1000).
How long do you have to request an ALJ hearing?
You have 60 calendar days from receiving the notice of the QIC’s reconsideration or dismissal (42 C.F.R. § 405.1014(c)(1)). The text of the rule reviewed for this article does not state a presumption of receipt.
Does an ALJ hearing request stop recoupment?
No. The pause that applies at the redetermination and reconsideration levels does not reach the ALJ level. Recovery remains in effect as provided in 42 C.F.R. § 405.373(e) until payment in full, a satisfactory settlement agreement, or a determination that no overpayment exists (§ 405.379).
Can you submit new evidence to the ALJ?
You can, but evidence from a provider that was not submitted before the reconsideration must come with a statement explaining why, and the ALJ must exclude it unless you had good cause for submitting it for the first time at OMHA (42 C.F.R. §§ 405.1018(c), 405.1028).
Is the hearing held in person?
Often not. The rule directs providers generally to appear by telephone, and video or in-person hearings are subject to findings and, for in-person hearings, good cause (42 C.F.R. § 405.1020(b)). Objections must be in writing.
How long does OMHA have to decide?
Ninety calendar days from receiving a timely request, or 180 days when the case is escalated from the QIC (42 C.F.R. § 405.1016). The rule sets a decision period and does not predict how long a file will wait.
Does the ALJ have to follow CMS policy?
It depends on the source. National coverage determinations and Medicare statutes and regulations bind the ALJ. Local coverage determinations and program guidance do not, but the ALJ must give them substantial deference and explain a departure (42 C.F.R. §§ 405.1060, 405.1062, 405.1063).
About the author. Reynaldo T. Acosta heads the litigation practice at Vitale, Suarez & Associates, P.A. in Miami Lakes, Florida, the firm founded in 1982 as The Health Law Offices of Anthony C. Vitale, P.A. He is a member of The Florida Bar and earned his J.D. from Florida International University College of Law, where he was named to the Dean’s List and competed on the International Commercial Arbitration and the Negotiation and Mediation teams. He also holds a B.S. in Criminal Justice and Public Management with a minor in Political Science from Florida International University, and advanced certifications in generative artificial intelligence, machine learning, and agentic systems from IBM, Anthropic, and Microsoft. He is a member of the American Bar Association, the Hispanic National Bar Association, and the Cuban American Bar Association, and works with clients in English and Spanish. Learn more about the firm.
This article is for general information purposes only and should not be taken as legal advice for any individual case or situation. Reading it, or corresponding with us through this site, is not intended to create and does not create an attorney-client relationship. Federal and Florida healthcare regulations change frequently, and how any rule applies depends on the specific facts of your arrangement, your payor contracts, and your jurisdiction. Vitale, Suarez & Associates, P.A. is based in Miami Lakes, Florida and represents clients in Florida. If you have received an audit notice, records request, subpoena, civil investigative demand, or overpayment demand, speak with a licensed attorney before you respond.
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