Legal: Don't be caught off-guard by contractors

Tuesday, December 27, 2011

A. You may be surprised to learn that a Medicare Administrative Contractor or Qualified Independent Contractor will be part of your ALJ hearing, especially since the same contractor has likely already reviewed and denied your claim. However, these contractors now have the ability to participate in the Medicare appeals process at the ALJ level. What that means for your hearing depends on whether the contractor has chosen to be a participant or a party.

As a participant, a Medicare contractor may offer testimony to clarify factual or policy issues or file a position paper, but cannot call witnesses or ask your witnesses direct questions. Similarly, a contractor acting as a participant cannot be called as a witness and doesn't have to answer direct questions from you. Of course, the ALJ can still ask questions of anybody. Because of these limitations, when a contractor is a participant, the hearing is not considered "adversarial" in the legal sense. But it can still be very contentious.

A Medicare contractor may also take part in an ALJ hearing as a "party" unless the hearing is requested by an unrepresented beneficiary. At that point, the hearing becomes adversarial. As a party, the contractor has all of the rights of a participant, plus the ability to call witnesses and cross-examine your witnesses. Likewise, you have the right to cross-examine anyone testifying on behalf of the contractor. The ALJ may also allow you to request discovery from the contractor prior to the hearing. 

A contractor must notify the ALJ and parties to the hearing of its election to become a participant or a party no later than 10 days after receiving the notice of hearing. If a contractor wants to take part in your hearing but has not provided you timely notice, be sure to let the ALJ know this. hme

Katie Salsbury is an attorney with Eastwood & Azia. Reach her at or 202-296-7775.