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. § 405.1110

Council reviews on its own motion

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(a) General rule. The Council may decide on its own motion to review a decision or dismissal issued by an ALJ or attorney adjudicator. CMS or any of its contractors may refer a case to the Council for it to consider reviewing under this authority anytime within 60 calendar days of receipt of an ALJ's or attorney adjudicator's decision or dismissal.

(b) Referral of cases. (1) CMS or any of its contractors may refer a case to the Council if, in their view, the decision or dismissal contains an error of law material to the outcome of the claim or presents a broad policy or procedural issue that may affect the public interest. CMS may also request that the Council take own motion review of a case if—

(i) CMS or its contractor participated in the appeal at the OMHA level; and

(ii) In CMS' view, the ALJ's or attorney adjudicator's decision or dismissal is not supported by the preponderance of evidence in the record or the ALJ or attorney adjudicator abused his or her discretion.

(2) CMS' referral to the Council is made in writing and must be filed with the Council no later than 60 calendar days after the ALJ's or attorney adjudicator's decision or dismissal is received. The written referral will state the reasons why CMS believes the Council must review the case on its own motion. CMS will send a copy of its referral to all parties to the ALJ's or attorney adjudicator's action who received a copy of the decision under § 405.1046(a) or the notice of dismissal under § 405.1052(d), and to the OMHA Chief ALJ. Parties to the ALJ's or attorney adjudicator's action may file exceptions to the referral by submitting written comments to the Council within 20 calendar days of the referral notice. A party submitting comments to the Council must send such comments to CMS and all other parties to the ALJ's or attorney adjudicator's action who received a copy of the decision under § 405.1046(a) or the notice of dismissal under § 405.1052(d).

(c) Standard of review—(1) Referral by CMS after participation at the OMHA level. If CMS or its contractor participated in an appeal at the OMHA level, the Council exercises its own motion authority if there is an error of law material to the outcome of the case, an abuse of discretion by the ALJ or attorney adjudicator, the decision is not consistent with the preponderance of the evidence of record, or there is a broad policy or procedural issue that may affect the general public interest. In deciding whether to accept review under this standard, the Council will limit its consideration of the ALJ's or attorney adjudicator's action to those exceptions raised by CMS.

(2) Referral by CMS when CMS did not participate in the OMHA proceedings or appear as a party. The Council will accept review if the decision or dismissal contains an error of law material to the outcome of the case or presents a broad policy or procedural issue that may affect the general public interest. In deciding whether to accept review, the Council will limit its consideration of the ALJ's or attorney adjudicator's action to those exceptions raised by CMS.

(d) Council's action. If the Council decides to review a decision or dismissal on its own motion, it will mail the results of its action to all the parties to the hearing and to CMS if it is not already a party to the hearing. The Council may adopt, modify, or reverse the decision or dismissal, may remand the case to an ALJ or attorney adjudicator for further proceedings or may dismiss a hearing request. The Council must issue its action no later than 90 calendar days after receipt of the CMS referral, unless the 90 calendar day period has been extended as provided in this subpart. The Council may not, however, issue its action before the 20 calendar day comment period has expired, unless it determines that the agency's referral does not provide a basis for reviewing the case. If the Council does not act within the applicable adjudication deadline, the ALJ's or attorney adjudicator's decision or dismissal is binding on the parties to the ALJ's or attorney adjudicator's action.

(e) Referral timeframe. For purposes of this section, the date of receipt of the ALJ's or attorney adjudicator's decision or dismissal is presumed to be 5 calendar days after the date of the notice of the decision or dismissal, unless there is evidence to the contrary.

[82 FR 5122, Jan. 17, 2017, as amended at 84 FR 19871, May 7, 2019]
Notes of Decisions
Cited in 11 cases (6 in the last 5 years), 2012–2025 · leading case: John Balko & Assocs., Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 555 F. App'x 188 (3rd Cir. 2014).
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John Balko & Assocs., Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 555 F. App'x 188 (3rd Cir. 2014). · cites it 3× “”); 42 C.F.R. § 405.1110 (d) (explaining that the MAC “may adopt, modify or reverse the [ALJ’s] decision, [or] may remand the case to an ALJ for further proceedings”).”
Almy v. Sebelius, 679 F.3d 297 (4th Cir. 2012). “” 42 C.F.R. § 405.1110 (c)(2). The Secretary has simply not seen fit to invoke her final authority in every case in which there is an argument over whether the evidence adequately supports a finding that a device was “reasonable and necessary.”
Int'l Rehabilitative Sciences Inc. v. Sebelius, 688 F.3d 994 (9th Cir. 2012). “42 C.F.R. § 405.1110 . Each of these administrative appeals applies de novo review.”
Cypress Home Care, Inc. v. Azar, 326 F. Supp. 3d 307 (E.D. Tex. 2018). · cites it 2× “000459-000474; see 42 C.F.R. § 405.1110 . The same day, Cypress filed an appeal with the Council seeking review of all unfavorable aspects of the ALJ's decision.”
Born v. Sebelius, 968 F. Supp. 2d 1109 (D. Colo. 2013). “Under 42 C.F.R. § 405.1110 (b), a QIC may refer an ALJ decision to the Council for review if the QIC believes that an ALJ decision contains an error of law material to the outcome of the claim.”
I & R Med., P.C. v. Hargan (E.D.N.Y 2021). · cites it 4× “” 42 C.F.R. § 405.1110 (b)(1). CMS may also request that the Council take its own motion review of a case if “CMS or its contractor participated in the appeal at the [Office of Medicare Hearings and Appeals (“OMHA”)] level” and “[i]n CMS’ view, the ALJ’s or attorney…”
Becerra (D. Or. 2025). · cites it 4× “” 42 C.F.R. § 405.1110 (c)(2). In addition, if CMS or its contractor were “participants” in proceedings before the ALJ, they may refer the case if the decision “is not supported by the preponderance of evidence in the record” or the ALJ “abused his or her discretion.”
Methodist Healthcare-Memphis Hospitals v. Becerra (W.D. Tenn. 2022). · cites it 3× “” 42 C.F.R. § 405.1110 (c)(2). Plaintiff argues that the Council lacked the authority to engage in own-motion review of the determination of the ALJ.”
Vein & Wellness Grp., LLC v. Xavier Becerra (4th Cir. 2024). “” 42 C.F.R. § 405.1110 (c)(2). The MAC’s decision is the final decision of the agency, 42 C.”
Vein & Wellness Grp., LLC v. Becerra (D. Maryland 2022). “See 42 C.F.R. 405.1110(c)(2). In the CMS referral, the Secretary specifically alleges that “[t]he ALJ erred as a matter of law by failing to apply relevant CMS policies governing determinations of reasonableness and necessity.”
Fam. Foot & Leg Ctr., P.A. v. Becerra (M.D. Fla. 2025). “§ 1395ff(d)(2); 42 C.F.R. § 405.1110 (a). If the party is still unsatisfied, it can seek judicial review in federal court.”
— 42 C.F.R. § 405.1110(c)(2) — 1 case
Vein & Wellness Grp., LLC v. Becerra (D. Maryland 2022). “See 42 C.F.R. 405.1110(c)(2). In the CMS referral, the Secretary specifically alleges that “[t]he ALJ erred as a matter of law by failing to apply relevant CMS policies governing determinations of reasonableness and necessity.”
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