Medicare ALJ Hearing Preparation: Evidence, Witnesses, and Arguments That Win at Level 3

The Administrative Law Judge (ALJ) hearing is the third level of the Medicare fee-for-service appeals process, and for many providers it is the first time they can explain their case directly to an independent decision-maker. ALJs at the Office of Medicare Hearings and Appeals (OMHA) review the case de novo, meaning they look at the issues fresh rather than simply reviewing the earlier decisions. Many providers find that a well-prepared ALJ hearing gives them their best chance to reverse a denial or overpayment.

But ALJ hearings have their own rules. The request must meet the amount in controversy threshold and be filed on time. New evidence from providers is generally limited unless good cause is shown. Statistical sampling challenges must be stated in the request for hearing. CMS or its contractors may participate. And the hearing itself, usually by telephone or video, requires preparation of witnesses and clear, focused arguments.

This article explains how to request an ALJ hearing, what the ALJ considers, evidence rules, how to prepare witnesses, what to expect at the hearing, how to build persuasive arguments, and what happens after the decision. It is educational and does not replace legal advice. Providers with significant amounts at stake should consider engaging experienced healthcare counsel.

Requesting an ALJ Hearing

Deadline

OMHA explains that a written request for an ALJ hearing must be filed within 60 days of receiving the Level 2 reconsideration decision. If you file late, you must explain the reason and ask the adjudicator for an extension, using Form OMHA-103 or a written explanation.

Amount in Controversy

The amount remaining in controversy must meet the annual threshold. For requests filed on or after January 1, 2026, CMS announced an ALJ hearing threshold of $200. OMHA notes that claims can sometimes be combined, or aggregated, to meet the threshold under certain conditions.

How to File

OMHA explains that appellants may use Form OMHA-100, Request for Administrative Law Judge Hearing or Review of Dismissal, or OMHA-100A for appeals involving multiple beneficiaries, or a written request containing the required information. Part A and Part B appeals can be filed through the OMHA e-Appeal Portal. Mailed requests go to the address listed in the reconsideration notice. OMHA also requires the appellant to send a copy of the request to the other parties who received the reconsideration decision.

What to Include

Under 42 CFR 405.1014, the request must include information such as:

• The beneficiary's name, address, and Medicare number.

• The appellant's name, address, and telephone number.

• The appeal number from the reconsideration, if any.

• The dates of service.

• The reasons the appellant disagrees with the QIC's reconsideration.

• A statement of any additional evidence to be submitted and the date it will be submitted.

Statistical Sampling Requirements

If the appeal involves an extrapolated overpayment and you disagree with how the statistical sample or extrapolation was conducted, 42 CFR 405.1014(a)(3) requires you to include the required information for each sample claim you wish to appeal, file the request for all sampled claims within 60 days of receiving the last reconsideration if they were not all addressed in a single reconsideration, and assert the reasons you disagree with the sampling and extrapolation in the request for hearing. Under 42 CFR 405.1032(d), if those reasons are not stated in the request, the sampling and extrapolation issues will not be considered.

Waiving the Hearing

You may waive your right to an oral hearing and ask for a decision on the record using Form OMHA-104. This may be appropriate when the record is strong and testimony would add little.

What the ALJ Considers

De Novo Review

The ALJ reviews the issues independently and is not bound by the MAC's or QIC's findings. The ALJ considers the evidence in the administrative record, testimony, and arguments.

Binding Authorities

Under Medicare's appeals regulations:

• ALJs are bound by the Social Security Act, regulations, National Coverage Determinations (NCDs), and CMS Rulings.

• ALJs are not bound by Local Coverage Determinations (LCDs), billing and coding articles, or CMS program guidance such as manuals, but they give substantial deference to these policies if they apply to the case. If an ALJ declines to follow an applicable LCD or manual provision, the ALJ must explain the reasons in the decision, and the decision applies only to that case.

Understanding this hierarchy helps you frame arguments. For example, you can argue that the record meets an LCD's requirements, or in appropriate cases explain why a particular policy provision should not be applied to the specific facts.

Issues Before the ALJ

Under 42 CFR 405.1032, the ALJ generally considers the issues raised in the request for hearing that were decided in the earlier determinations and that the appellant did not concede. The ALJ may also consider new issues in limited circumstances, after notice to the parties.

Evidence Rules at the ALJ Level

New Evidence From Providers and Suppliers

Under 42 CFR 405.1028, new evidence submitted by a provider, supplier, or a beneficiary represented by a provider or supplier that was not submitted before the QIC reconsideration is generally excluded unless the ALJ finds good cause. Good cause may exist, for example, when the evidence is material to an issue first identified in the QIC's reconsideration or when the party was unable to obtain the evidence before the reconsideration despite reasonable attempts. This is why Level 2 is so important.

Submitting Evidence

Under 42 CFR 405.1018, parties generally must submit all written evidence they wish the ALJ to consider with the request for hearing or within 10 calendar days of receiving the notice of hearing. If you seek to submit new evidence, include a statement explaining why it was not submitted earlier and why good cause exists.

Organizing the Record

Although the administrative record already contains evidence from earlier levels, it can be long and disorganized. Consider preparing:

• A position paper or prehearing brief summarizing your arguments.

• An index or exhibit list identifying key documents by exhibit and page number.

• A claim-by-claim summary for multi-claim appeals.

• A chronology of key events.

Preparing Witnesses

Who Should Testify

Witnesses can bring the record to life. Consider:

• The treating physician or practitioner, who can explain the clinical reasoning behind the service.

• A clinician who provided the service, such as a nurse or therapist.

• A billing or coding expert, for coding disputes.

• A statistical expert, for extrapolation challenges.

• A compliance or operations witness, for process questions such as how records are maintained.

Preparing Each Witness

• Review the record with the witness, especially the documents they authored.

• Identify the key points the witness should explain.

• Prepare for likely questions from the ALJ and from any CMS or contractor participant.

• Make sure testimony is consistent with the contemporaneous record. Testimony that contradicts or goes beyond the record is less persuasive.

• Practice concise, plain-language explanations of clinical concepts.

• Confirm the witness's availability and the hearing format.

OMHA's case processing materials note that in complex cases, such as statistical sampling appeals, appellants commonly call multiple witnesses and experts, and the ALJ may hold a prehearing conference to address how long each witness will testify.

Testimony Under Oath

Witnesses at ALJ hearings generally testify under oath or affirmation. Remind witnesses to answer truthfully, stay within their knowledge, and say so if they do not know an answer.

CMS and Contractor Participation

Under 42 CFR 405.1010 and 405.1012, CMS or its contractors may participate in an ALJ hearing or, in some cases, elect to be a party. As a participant, CMS or a contractor may file position papers and provide testimony to clarify factual or policy issues. As a party, CMS or a contractor may also call witnesses and cross-examine. CMS may not be a party when the appellant is an unrepresented beneficiary.

If CMS or a contractor participates:

• Review any position paper carefully and prepare responses.

• Anticipate the contractor's arguments, which often focus on policy requirements and documentation gaps.

• Prepare witnesses for questions from the contractor.

Prehearing Conferences

Under 42 CFR 405.1040, an ALJ may hold a prehearing conference to clarify or narrow issues, establish how the hearing will proceed, or discuss what information may be most useful. OMHA's guidance explains that the ALJ issues a prehearing conference order after the conference. Treat a prehearing conference as an opportunity to focus the hearing on the issues that matter most.

The Hearing Itself

Notice and Format

OMHA explains that the ALJ sets the time and place of the hearing and sends a Notice of Hearing at least 20 days before the hearing. Hearings are usually conducted by telephone, although video-teleconferencing or in-person hearings may be available in certain circumstances. Appellants should return Form OMHA-102 to acknowledge the notice within five days of receipt. In-person hearings require a written request explaining why an in-person hearing is needed, and may be granted for good cause.

What Happens at the Hearing

A typical hearing includes:

• Opening by the ALJ, who explains the issues and procedures.

• Swearing in of witnesses.

• The appellant's presentation, including testimony and argument.

• Questions from the ALJ.

• Participation by CMS or its contractor, if applicable.

• Closing statements.

Hearings are recorded. Keep presentations focused, organized, and respectful.

Practical Tips for the Hearing

• Test your phone or video connection in advance.

• Use a quiet room and have the exhibit list and key documents ready.

• Refer to exhibits by number and page so the ALJ can follow along.

• Keep answers concise and responsive.

• Do not interrupt the ALJ.

• Summarize your main points clearly at the end.

Arguments That Persuade ALJs

1. Requirement-by-Requirement Analysis

Identify each coverage requirement and show exactly where the record satisfies it. This structured approach is often the most persuasive.

2. Clinical Narrative Supported by the Record

Explain the patient's condition and why the service was needed, supported by contemporaneous documentation. Treating practitioner testimony can be powerful when it explains, rather than replaces, the record.

3. Correct Application of Policy

Show that the earlier reviewers applied the wrong policy, applied a policy not in effect on the date of service, or misread the documentation.

4. Limitation of Liability

Under Section 1879 of the Social Security Act, if neither the provider nor the beneficiary knew or could reasonably have been expected to know that the service would not be covered, liability may be limited. This argument is often relevant when coverage turns on clinical judgment.

5. Provider Without Fault

For overpayments, Section 1870 of the Social Security Act may limit recovery when the provider was without fault and recovery would defeat the purposes of the Act or be against equity and good conscience.

6. Partial Payment

If documentation supports a lower level of service, argue in the alternative for payment at that level.

7. Statistical Sampling Challenges

For extrapolated overpayments, combine claim-level arguments with specific, quantified methodology objections supported by expert testimony, and make sure the objections were stated in the request for hearing.

Arguments That Rarely Work

• General objections that the rules are unfair.

• Claims that the provider always bills correctly, without record support.

• Testimony that contradicts the contemporaneous record.

• New evidence without a good cause explanation.

After the Hearing

The Decision

Under 42 CFR 405.1016, the ALJ generally must issue a decision within 90 days of receipt of the request for hearing, subject to extensions in certain circumstances, such as when the appellant submits additional evidence or requests a delay. If the ALJ does not decide within the applicable timeframe, the appellant may be able to escalate the appeal to the Medicare Appeals Council.

If You Win

The MAC will effectuate the decision, generally by paying the claim or adjusting the overpayment. If an overpayment was recouped, interest may be payable to the provider under applicable rules.

If You Lose

You may request review by the Medicare Appeals Council within 60 days of receiving the ALJ decision. After the Council, you may seek judicial review in federal district court if the amount in controversy is met, which is $1,960 for 2026.

CMS Referral

CMS may also refer an ALJ decision to the Council for own-motion review if it believes the decision contains an error of law or policy. Watch for such referrals after a favorable decision.

Representation at the ALJ Level

Appellants may represent themselves or appoint a representative, such as an attorney or consultant. For beneficiaries, appointment is typically documented on Form CMS-1696. Providers that are appellants generally appear through an authorized official or a representative. When choosing whether to use a representative, consider:

• The amount at stake.

• Whether the appeal involves statistical sampling or complex legal issues.

• Whether CMS or a contractor is participating or is a party.

• The number of claims and beneficiaries involved.

• Your organization's experience with ALJ hearings.

Experienced representatives can help frame issues, prepare witnesses, respond to contractor position papers, and preserve issues for later review.

A Hearing Preparation Checklist

1. Confirm the request was filed within 60 days and meets the amount in controversy.

2. Confirm all sampled claims and statistical objections were included, if applicable.

3. Obtain and review the complete administrative record.

4. Identify the issues and requirements in dispute.

5. Prepare a position paper and exhibit list.

6. Identify and prepare witnesses.

7. Evaluate whether any new evidence meets good cause, and prepare the explanation.

8. Review any CMS or contractor position papers.

9. Prepare for a prehearing conference, if scheduled.

10. Return Form OMHA-102 and confirm hearing logistics.

11. Prepare opening and closing statements.

12. Test technology and prepare documents for the hearing.

13. Calendar the expected decision date and next-level deadlines.

A Hypothetical Example

An ambulance supplier appeals denials of several non-emergency transports, which were upheld at redetermination and reconsideration because the reviewers found that the documentation did not show the patient was bed-confined or that other transport was contraindicated. The supplier had submitted the crew run sheets and the physician certification statements at the earlier levels, along with the patient's hospital records documenting severe contractures, inability to sit upright, and pressure injuries.

At the ALJ hearing, the supplier's representative presents a short position paper organized by transport date, citing the specific pages of the hospital records and run sheets that describe the patient's condition. The paramedic who completed several of the run sheets testifies about the patient's condition at pickup, consistent with the written records. The ALJ finds that the record supports the medical necessity of ambulance transport and reverses the denials. Because the key records were submitted at reconsideration, there was no need to show good cause for new evidence.

Common Mistakes at Level 3

• Filing after the 60-day deadline without a good cause explanation.

• Omitting statistical sampling objections from the request for hearing.

• Relying on new evidence that was not submitted at reconsideration.

• Failing to send copies of the request to the other parties.

• Not returning the notice of hearing response form.

• Presenting witnesses who are unprepared or whose testimony conflicts with the record.

• Ignoring CMS or contractor position papers.

• Missing the 60-day deadline to request Medicare Appeals Council review after an unfavorable decision.

Frequently Asked Questions

How long do I have to request an ALJ hearing?

Generally 60 days from receipt of the reconsideration decision.

What is the amount in controversy for 2026?

$200 for ALJ hearing requests filed on or after January 1, 2026.

Can I submit new evidence at the ALJ level?

Providers and suppliers generally must show good cause for evidence not submitted before the QIC reconsideration.

Are ALJ hearings in person?

They are usually by telephone, but video or in-person hearings may be available in certain circumstances. In-person hearings require a written request explaining why they are needed.

Are ALJs bound by LCDs?

ALJs are not bound by LCDs but give substantial deference to them when they apply. ALJs are bound by statutes, regulations, NCDs, and CMS Rulings.

Can CMS or a contractor appear at my hearing?

Yes. CMS or its contractors may participate in the hearing or, in some cases, elect party status, subject to the rules in 42 CFR 405.1010 and 405.1012.

Can I ask for a decision without a hearing?

Yes. You may waive the oral hearing using Form OMHA-104 and ask the adjudicator to decide on the record.

What if the ALJ does not decide within 90 days?

You may be able to escalate the appeal to the Medicare Appeals Council, subject to the applicable rules and any extensions of the ALJ's timeframe.

Conclusion

An ALJ hearing gives providers an opportunity to present their case to an independent decision-maker who reviews the issues de novo. Success depends on preparation: filing on time and meeting the amount in controversy, stating statistical sampling objections in the request, building a complete record by the reconsideration level, organizing exhibits, preparing credible witnesses whose testimony aligns with the record, anticipating CMS or contractor participation, and presenting clear, requirement-by-requirement arguments with appropriate alternative arguments. With careful preparation, the ALJ hearing can be the turning point in a Medicare appeal.

How HealthBridge Can Help

HealthBridge is a healthcare management consulting firm that helps providers prepare for ALJ hearings by organizing the administrative record, developing position papers and exhibit lists, preparing clinical and billing witnesses, coordinating with statistical experts and legal counsel, and tracking deadlines through the Medicare Appeals Council and beyond. If you are preparing for a Level 3 hearing, please get in touch with us. We will be happy to help you with this topic.

References

• U.S. Department of Health and Human Services, Office of Medicare Hearings and Appeals. Request an ALJ Hearing. https://www.hhs.gov/about/agencies/omha/filing-an-appeal/coverage-and-claims-appeals/request-an-alj-hearing/index.html

• U.S. Department of Health and Human Services, Office of Medicare Hearings and Appeals. OMHA Case Processing Manual. https://www.hhs.gov/about/agencies/omha/the-appeals-process/case-processing-manual/index.html

• U.S. Department of Health and Human Services, Office of Medicare Hearings and Appeals. Scheduling and Noticing for Prehearing Conferences and Hearings. https://www.hhs.gov/sites/default/files/scheduling-and-noticing-for-prehearing-conferences-and-hearings-09-28-2018.pdf

• U.S. Department of Health and Human Services, Office of Medicare Hearings and Appeals. Conducting Conferences and Hearings; Posthearing Development. https://www.hhs.gov/sites/default/files/conducting-conferences-and-hearings-posthearing-development.pdf

• U.S. Department of Health and Human Services, Office of Medicare Hearings and Appeals. Form OMHA-104, Waiver of Right to an ALJ Hearing. https://www.hhs.gov/sites/default/files/OMHA-104_Waiver_of_Right_to_an_ALJ_Hearing%200328.pdf

• Federal Register. Medicare Program; Medicare Appeals; Adjustment to the Amount in Controversy Threshold Amounts for Calendar Year 2026 (December 4, 2025). https://www.govinfo.gov/content/pkg/FR-2025-12-04/html/2025-21879.htm

• Centers for Medicare & Medicaid Services. Original Medicare (Fee-for-Service) Appeals. https://www.cms.gov/medicare/appeals-grievances/fee-for-service

• Electronic Code of Federal Regulations. 42 CFR Part 405, Subpart I, Determinations, Redeterminations, Reconsiderations, and Appeals Under Original Medicare. https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-B/part-405/subpart-I

• Electronic Code of Federal Regulations. 42 CFR 405.1010 and 405.1012, CMS and Contractor Participation and Party Status. https://www.ecfr.gov/current/title-42/section-405.1010

• Electronic Code of Federal Regulations. 42 CFR 405.1014, Request for an ALJ Hearing. https://www.ecfr.gov/current/title-42/section-405.1014

• Electronic Code of Federal Regulations. 42 CFR 405.1016, Time Frames for Deciding an Appeal of a QIC Reconsideration. https://www.ecfr.gov/current/title-42/section-405.1016

• Electronic Code of Federal Regulations. 42 CFR 405.1018, Submitting Evidence. https://www.ecfr.gov/current/title-42/section-405.1018

• Electronic Code of Federal Regulations. 42 CFR 405.1028, Prehearing Case Review of Evidence Submitted by the Appellant. https://www.ecfr.gov/current/title-42/section-405.1028

• Electronic Code of Federal Regulations. 42 CFR 405.1032, Issues Before an ALJ or Attorney Adjudicator. https://www.ecfr.gov/current/title-42/section-405.1032

• Electronic Code of Federal Regulations. 42 CFR 405.1036, Description of an ALJ Hearing Process. https://www.ecfr.gov/current/title-42/section-405.1036

• Electronic Code of Federal Regulations. 42 CFR 405.1040, Prehearing and Posthearing Conferences. https://www.ecfr.gov/current/title-42/section-405.1040

• Electronic Code of Federal Regulations. 42 CFR 405.1062, Applicability of Local Coverage Determinations and Other Policies Not Binding on the ALJ. https://www.ecfr.gov/current/title-42/section-405.1062

• U.S. Social Security Administration. Social Security Act, Section 1879, Limitation on Liability. https://www.ssa.gov/OP_Home/ssact/title18/1879.htm

• U.S. Social Security Administration. Social Security Act, Section 1870, Overpayment on Behalf of Individuals. https://www.ssa.gov/OP_Home/ssact/title18/1870.htm