Fourth Level of Appeal: Review by the Medicare Appeals Council

Any party that is dissatisfied with OMHA’s decision or dismissal may request a review by the Medicare Appeals Council (the Council). If OMHA's adjudication period has elapsed without an Administrative Law Judge (ALJ) or attorney adjudicator issuing a decision or dismissal on the request for hearing, the appellant party has the opportunity to escalate the appeal to the Council.

Requesting Review by the Council 

A request for Council review must be filed with the Council, a component of the Department of Health & Human Services, Departmental Appeals Board, within 60 days of receipt of the notice of OMHA's decision or dismissal. The notice of OMHA’s decision or dismissal is presumed to be received 5 days after the date of the notice, unless there is evidence to the contrary. The appellant must also send a copy of the request for review to the other parties who received notice of the ALJ or attorney adjudicator decision or dismissal.

There is no requirement regarding the amount of money in controversy for Council review. Refer to the OMHA decision or dismissal for details regarding the procedures to follow when filing a request for Council review. Instructions for filing a request (including where to send the request) can also be found on the Council webpage at: https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/index.html.

The request for review must be made in writing and must specify the parts of the decision or action that the party disagrees with, why they disagree. The appellant should include a copy of the disputed decision with the appeal.  The request for review can be filed using either:

1. 1. The form DAB-101 (link below in “Related Links”); or
   2. A written request that must include:
      • The beneficiary's name
      • The beneficiary's Medicare number
      • The specific service(s) or item(s) for which the review is requested
      • The specific date(s) of service
      • The date of the ALJ’s decision or dismissal order
      • The name of the party or the representative of the party

A party may also file electronically on the Council's website: https://dab.efile.hhs.gov/mod/

Council Review of a Dismissal of a Hearing Request

Parties to a dismissal issued by an ALJ or attorney adjudicator have the right to request that the Council review the dismissal. The request for review must be filed in writing with the Council within 60 days after the date of receipt of the dismissal notice. The date of receipt of the dismissal notice is presumed to be 5 days after the date of the dismissal. The party requesting review of the dismissal must also send a copy of the request for review to the other parties who received notice of the dismissal. Failure to copy the other parties extends the Council's adjudication deadline as set forth in 42 CFR 405.1100 until all parties to the ALJ or attorney adjudicator dismissal receive notice of the request for Council review.

Council Review of Escalation of a Hearing Request

If an appellant files a request to escalate an appeal to the Council because OMHA has not completed the action on the request for hearing within the adjudication deadline, the request for escalation must be filed with OMHA and the appellant must also send a copy of the request for escalation to the other parties who were sent a copy of the QIC reconsideration. Failure to copy the other parties extends the Council's adjudication deadline. In a case that has been escalated from OMHA, the Council's 180 calendar day period to issue a final decision, dismissal order, or remand order begins on the date the request for escalation is received by the Council.

NOTE: Due to a record number of appeal requests, there continues to be a delay in OMHA ALJ hearings. OMHA remains committed to processing ALJ hearing requests in the order received and as quickly as possible, and prioritizes Part D prescription drug denial cases that qualify for expedited status and Medicare beneficiary issues. An Acknowledgement of Request letter is issued after a case is entered in to the OMHA case tracking system. Find more information on these timeframes on the Office of Medicare Hearings and Appeals webpage.

Dismissal of Request for Council Review

A request for review by the Council may be dismissed for any of the following reasons:

• The appeal request is untimely
• At the request of the party
• For cause

The Council mails or otherwise transmits a written notice of the dismissal of the request to all parties who were sent a copy of the request for hearing or review. The dismissal of a request for Council review, or denial of a request for review of a dismissal issued by OMHA, is binding and not subject to further review, unless reopened and vacated by the Council. The Council's dismissal of a request for hearing is also binding and not subject to judicial review.

Decision Notification Timeframes

If the Council does not issue a decision, a dismissal, or remand the case to an ALJ or attorney adjudicator within the adjudication period specified (with exceptions noted), the appellant may send a request to the Council asking that the appeal, other than an appeal of an ALJ or attorney adjudicator dismissal, be escalated to Federal district court. Upon receipt of a request for escalation, the Council will send written notice to the appellant that will contain either a decision, dismissal, notice of remand or further instructions on escalation. The appellant party may file an action in a Federal district court within 60 calendar days after the date it receives the Council's notice that the Council is not able to issue a timely final decision, dismissal order, or remand order.

View the Council's webpage at: http://www.hhs.gov/dab

*Note: these timeframes may be extended for various reasons.