C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 405—FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED › Subpart I—Determinations, Redeterminations, Reconsiderations, and Appeals Under Original Medicare (Part A and Part B)

42 C.F.R. § 405.1028

Review of evidence submitted by parties

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(a) New evidence—(1) Examination of any new evidence. After a hearing is requested but before a hearing is held by an ALJ or a decision is issued if no hearing is held, the ALJ or attorney adjudicator will examine any new evidence submitted in accordance with § 405.1018, by a provider, supplier, or beneficiary represented by a provider or supplier to determine whether the provider, supplier, or beneficiary represented by a provider or supplier had good cause for submitting the evidence for the first time at the OMHA level.

(2) Determining if good cause exists. An ALJ or attorney adjudicator finds good cause when—

(i) The new evidence is, in the opinion of the ALJ or attorney adjudicator, material to an issue addressed in the QIC's reconsideration and that issue was not identified as a material issue prior to the QIC's reconsideration;

(ii) The new evidence is, in the opinion of the ALJ, material to a new issue identified in accordance with § 405.1032(b)(1);

(iii) The party was unable to obtain the evidence before the QIC issued its reconsideration and submits evidence that, in the opinion of the ALJ or attorney adjudicator, demonstrates the party made reasonable attempts to obtain the evidence before the QIC issued its reconsideration;

(iv) The party asserts that the evidence was submitted to the QIC or another contractor and submits evidence that, in the opinion of the ALJ or attorney adjudicator, demonstrates the new evidence was submitted to the QIC or another contractor before the QIC issued the reconsideration; or

(v) In circumstances not addressed in paragraphs (a)(2)(i) through (iv) of this section, the ALJ or attorney adjudicator determines that the party has demonstrated that it could not have obtained the evidence before the QIC issued its reconsideration.

(3) If good cause does not exist. If the ALJ or attorney adjudicator determines that there was not good cause for submitting the evidence for the first time at the OMHA level, the ALJ or attorney adjudicator must exclude the evidence from the proceeding and may not consider it in reaching a decision.

(4) Notification to parties. If a hearing is conducted, as soon as possible, but no later than the start of the hearing, the ALJ must notify all parties and participants who responded to the notice of hearing whether the evidence will be considered or is excluded from consideration.

(b) Duplicative evidence. The ALJ or attorney adjudicator may exclude from consideration any evidence submitted by a party at the OMHA level that is duplicative of evidence already in the record forwarded to OMHA.

[82 FR 5115, Jan. 17, 2017]
Notes of Decisions
Cited in 5 cases (3 in the last 5 years), 1981–2025 · leading case: Northlake Cmty. Hosp. v. United States, 654 F.2d 1234 (7th Cir. 1981).
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Northlake Cmty. Hosp. v. United States, 654 F.2d 1234 (7th Cir. 1981). “1025 (1980); and Laboratories, 42 CFR 405.1028 (1980). The most serious deficiencies cited by the inspectors involved violations of the National Fire Protection Association's Life Safety Code, which is incorporated in the Medicare Physical Environment condition.”
Northlake Cmty. Hosp. v. United States, 654 F.2d 1234 (7th Cir. 1981). “1025 (1980); and Laboratories, 42 CFR 405.1028 (1980). The most serious deficiencies cited by the inspectors involved violations of the National Fire Protection Association’s Life Safety Code, which is incorporated in the Medicare Physical Environment condition.”
Integrity Soc. Work Servs., LCSW, LLC v. AZAR (E.D.N.Y 2021). “See 42 C.F.R. 405.1028(a)(1). The hearing before the ALJ may be in-person or remote.”
Calvary Hosp., Inc. v. Becerra (S.D.N.Y. 2025). “See 42 C.F.R. § 405.1028 (describing ALJs’ authority to admit or exclude evidence from consideration).”
Calvary Hosp., Inc. v. Becerra (S.D.N.Y. 2025). “June 6, 2022) (citing 42 C.F.R. § 405.1028 (a)(1)). The ALJ “conducts a de novo review and issues a decision based on the administrative record, including .”
— 42 C.F.R. § 405.1028(a)(1) — 1 case
Integrity Soc. Work Servs., LCSW, LLC v. AZAR (E.D.N.Y 2021). “See 42 C.F.R. 405.1028(a)(1). The hearing before the ALJ may be in-person or remote.”
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