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. § 405.1108

Council actions when request for review or escalation is filed

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(a) Except as specified in paragraphs (c) and (d) of this section, when a party requests that the Council review an ALJ's or attorney adjudicator's decision, the Council will review the ALJ's or attorney adjudicator's decision de novo. The party requesting review does not have a right to a hearing before the Council. The Council will consider all of the evidence in the administrative record. Upon completion of its review, the Council may adopt, modify, or reverse the ALJ's or attorney adjudicator's decision or remand the case to an ALJ or attorney adjudicator for further proceedings.

(b) When a party requests that the Council review an ALJ's or attorney adjudicator's dismissal of a request for a hearing, the Council may deny review or vacate the dismissal and remand the case to the ALJ or attorney adjudicator for further proceedings.

(c) The Council will dismiss a request for review when the party requesting review does not have a right to a review by the Council, or will dismiss the request for a hearing for any reason that the ALJ or attorney adjudicator could have dismissed the request for hearing.

(d) When an appellant requests escalation of a case from the OMHA level to the Council, the Council may take any of the following actions:

(1) Issue a decision based on the record constructed at the QIC and any additional evidence, including oral testimony, entered in the record by the ALJ or attorney adjudicator before the case was escalated.

(2) Conduct any additional proceedings, including a hearing, that the Council determines are necessary to issue a decision.

(3) Remand the case to OMHA for further proceedings, including a hearing.

(4) Dismiss the request for Council review because the appellant does not have the right to escalate the appeal.

(5) Dismiss the request for a hearing for any reason that the ALJ or attorney adjudicator could have dismissed the request.

[70 FR 11472, Mar. 8, 2005, as amended at 82 FR 5122, Jan. 17, 2017]
Notes of Decisions
Cited in 11 cases (5 in the last 5 years), 2012–2025 · leading case: Am. Hosp. Ass'n v. Sebelius, 76 F. Supp. 3d 43 (D.D.C. 2014).
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Am. Hosp. Ass'n v. Sebelius, 76 F. Supp. 3d 43 (D.D.C. 2014). · cites it 2× “1104 ; 42 C.F.R. § 405.1108 (d). On escalated appeal, the DAB has 180 days within which to act — as opposed to its typical 90-day deadline.”
Med-Cert Home Care, LLC v. Azar, 365 F. Supp. 3d 742 (N.D. Tex. 2019). “42 C.F.R. § 405.1108 (d)(2). The Council must render a decision or remand the case within 180 days of a timely review request.”
Am. Hosp. Ass'n v. Sebelius, 209 F. Supp. 3d 221 (D.D.C. 2016). “(citing 42 C.F.R. § 405.1108 (d)(2)), it will not do so “unless there is an extraordinary question of law/policy/fact.”
Art of Healing Med., P.C. v. Burwell, 91 F. Supp. 3d 400 (E.D.N.Y 2015). “42 C.F.R. § 405.1108 (a). In the event an ALJ decision has issued, the Appeals Council, which renders the final decision of the Secretary, may adopt, modify, or reverse the ALJ’s decision.”
Am. Hosp. Ass'n v. Sebelius (D.D.C. 2016). “(citing 42 C.F.R. § 405.1108 (d)(2)), it will not do so “unless there is an extraordinary question of law/policy/fact.”
Angel's Touch Inc. v. Cochran (D. Ariz. 2021). “26 27 7 While the Appeals Council is authorized to conduct hearings, see 42 C.F.R. § 405.1108 , 28 Plaintiff asserts that the Appeals Council generally does not hold a hearing, absent an “extraordinary” circumstance.”
Integrity Soc. Work Servs., LCSW, LLC v. AZAR (E.D.N.Y 2021). “42 C.F.R. § 405.1108 (a). If the Council renders a decision, the Council’s decision is the “final decision” of the Secretary and is subject to judicial review in federal district court.”
Adams EMS, Inc. v. Azar (S.D. Tex. 2021). “42 C.F.R. § 405.1108 (d). Considering claims and facts similar to those before this court, the Sahara Health court found that the plaintiff received adequate process under the Constitution and the Medicare Act, and that the Department acted within its statutory authority.”
Calvary Hosp., Inc. v. Becerra (S.D.N.Y. 2025). “” 42 C.F.R. § 405.1108 (a). “The Council has 90 days to issue a decision, which becomes the final decision of the Secretary.”
Compass Lab'y Servs., LLC v. Becerra (W.D. Tenn. 2025). “” 42 C.F.R. § 405.1108 (d)(1). If escalated past ALJ review, the Council has 180 days to make a decision.”
United Med. Healthcare, Inc. v. Dep't of Health & Human Servs., 889 F. Supp. 2d 832 (E.D. La. 2012). “See 42 C.F.R. 405.1108(a); see also Admin. Rec.”
— 42 C.F.R. § 405.1108(a) — 1 case
United Med. Healthcare, Inc. v. Dep't of Health & Human Servs., 889 F. Supp. 2d 832 (E.D. La. 2012). “See 42 C.F.R. 405.1108(a); see also Admin. Rec.”
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