In re CMS LCD Complaint: Prostate Specific Antigen Test, DAB CR5251 (2019)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

David R. Green (the Aggrieved Party), submitted correspondence dated October 17, 2018, which the Civil Remedies Division treated as a challenge to a local coverage determination (LCD) and docketed as C-19-119.  I was designated to review the purported LCD challenge.

The applicable regulations require that I first determine whether an aggrieved party filed an “acceptable” and “valid” complaint.  42 C.F.R. § 426.410(b).  Upon initial review, I noted that it appeared the Aggrieved Party had timely filed his request for hearing within 120 days of the initial denial notice.  However, I also noted that the Aggrieved Party had not filed an acceptable and valid LCD complaint under the applicable regulations.  Therefore, on November 20, 2018, I issued an Acknowledgment of Receipt and Order to Aggrieved Party to Amend Unacceptable Complaint (Order).  In that order, I informed the Aggrieved Party that he had one opportunity to submit an acceptable complaint.  See 42 C.F.R. § 426.410(c)(1).

The Order described the elements required to be included in an LCD complaint to make it acceptable.  I specifically directed the Aggrieved Party to provide all of the following information:

• LCD-identifying information:  the Aggrieved Party’s initial complaint was unacceptable because he did not identify an LCD that he sought to challenge.  I therefore directed the Aggrieved Party to provide (i) the name of the contractor

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using the LCD; (ii) the title of the LCD; and (iii) the specific provision of the LCD that adversely affected him.

• Clinical or scientific evidence:  The Aggrieved Party did not provide copies of clinical or scientific evidence in support of his complaint.  Nor did he explain why he believes that this evidence shows that the LCD is not reasonable.  I therefore directed the Aggrieved Party to submit such evidence and explanation.

My Order directed the Aggrieved Party to file an amended complaint by December 27, 2018.  I advised the Aggrieved Party that if he did not submit an acceptable amended complaint by that time, I would issue a decision dismissing this action.  42 C.F.R. § 426.410(c)(2).

The Aggrieved Party has not filed a response since that time.  Therefore, his October 17, 2018 complaint remains unacceptable under 42 C.F.R. § 426.410(b).  I am required to dismiss an unacceptable complaint after giving an aggrieved party the opportunity to amend it.  42 C.F.R. § 426.410(c)(2).  Accordingly, I order this complaint dismissed.