In re LCD Complaint: Fulvestrant (Faslodex®)(LCD No. L33998), DAB CR5174 (2018)

Department of Health and Human Services
Civil Remedies Division

Docket No. C-18-143
Decision No. CR5174


On June 15, 2018, Medicare contractor First Coast Service Options, Inc. (First Coast) filed notice that it had revised LCD L33998:  Local Coverage Determination:  Fulvestrant (Faslodex®) to include coverage to treat the Aggrieved Party’s condition.  First Coast stated that “[t]he effective date of this revision is for claims processed on or after June 14, 2018 for dates of service on or after August 1, 2016.  First Coast also asserted it had uploaded the revised LCD Policy L33998 and the related Local Coverage Article A56011, “Fulvestrant (Faslodex®) revision to the Part A and Part B LCD” to the Medicare Coverage Database on June 14, 2018.”

Based on its position that the Aggrieved Party’s complaint was rendered moot because the Aggrieved Party would now receive coverage under the revised LCD, First Coast moved that I dismiss the Aggrieved Party’s complaint.

On June 22, 2018, I ordered the Aggrieved Party to show cause why I should not dismiss the complaint, as she had apparently received the coverage she sought when she filed her complaint before me.  In her response, the Aggrieved Party requested that I not dismiss the complaint until the revised policy was further clarified such that she would be assured that her claims would be covered.

In subsequent communications, First Coast declined to explicitly confirm coverage of the Aggrieved Party’s claims.  Accordingly, on July 18, 2018, I convened a telephone conference attended by Lisa Dees, representing First Coast, Juan L. Schaening, M.D., First Coast’s Executive Medical Director, and the Aggrieved Party.  Dr. Schaening stated that he had reviewed the Aggrieved Party’s claims, determined the Aggrieved Party’s claims had the correct diagnosis code, and confirmed her claims would therefore all be

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covered by the mass adjustment of claims which First Coast is undertaking as a result of the LCD revision.

In light of Dr. Schaening’s statements, I find dismissal appropriate here.  The regulations require dismissal where an LCD provision is no longer in effect.  42 C.F.R. § 426.444(b)(6).  Because First Coast has revised LCD No. L33998, the provision under which the Aggrieved Party filed its request for hearing is no longer in effect.

In addition, the Medicare beneficiary who filed the complaint against LCD No. L33998 is no longer an “aggrieved party” under the regulations, which require her service to have been denied based on an applicable LCD.  42 C.F.R. § 426.110.  Here, the LCD is no longer applicable, and First Coast has confirmed her services will be covered.  An administrative law judge may not conduct a hearing on an LCD complaint when it is sought by a “nonaggrieved party.”  42 C.F.R. § 426.405(d)(1).  Accordingly, I order that this complaint be dismissed.  42 C.F.R. § 426.444(b)(3).