In re CMS LCD Complaint: Ambulance Service, Basic Life Support, Non-Emergency Transport, DAB CR5354 (2019)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

The Civil Remedies Division received correspondence on April 15, 2019, from Julie Carter Mayville, the appointed representative of William Aubrey Carter (Aggrieved Party), which was treated as a challenge to a local coverage determination (LCD), docketed as styled above, C-19-679, and assigned to me for review.

The regulations at 42 C.F.R. § 426.410(b) require that I determine whether an aggrieved party has filed an “acceptable” and “valid” complaint. After reviewing the documents submitted, I concluded that they did not constitute an acceptable and valid LCD complaint under the applicable regulations. Therefore, in an Acknowledgment of Receipt and Order to Aggrieved Party to Amend Unacceptable Complaint (Order), dated April 29, 2019, I informed the Aggrieved Party’s representative that she had one opportunity to submit an acceptable complaint. See 42 C.F.R. § 426.410(c)(1).

My April 29 Order listed the information that is required to be included in an LCD complaint to make it acceptable. I specifically directed the Aggrieved Party’s representative to provide all of the following information:

• Timeliness of complaint: As I explained in detail in my April 29 Order, I was unable to determine whether the unacceptable complaint had been timely filed. I therefore directed the Aggrieved Party’s representative to submit a copy of the initial notice denying payment for the service at issue.

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• LCD-identifying information: As I explained in detail in my April 29 Order, I was unable to determine whether the unacceptable complaint was challenging an LCD or a determination by CMS that the requested service does not fall within the statutory benefit category of ambulance services. I therefore directed the Aggrieved Party’s representative to provide (i) the name of the contractor using the LCD; (ii) the title of the LCD; and (iii) the specific provision of the LCD that adversely affects the Aggrieved Party.
• Treating physician written statement: The unacceptable complaint did not include a copy of a written statement from the treating physician that the Aggrieved Party needs the service that is the subject of the LCD. I therefore directed the Aggrieved Party’s representative to submit such documentation in the form of a written order or other documentation from the Aggrieved Party’s medical record indicating that the Aggrieved Party needs the service.
• Aggrieved Party statement: The unacceptable complaint explained what service the Aggrieved Party needs, but it did not explain why the Aggrieved Party contends that the provision(s) of the LCD is (are) not valid under the reasonableness standard. I therefore directed the Aggrieved Party’s representative to submit a statement explaining the Aggrieved Party’s position.
• Clinical or scientific evidence: The unacceptable complaint did not include copies of clinical or scientific evidence in support of the Aggrieved Party’s position. Nor did it include an explanation of why the clinical or scientific evidence shows that the LCD is not reasonable. I therefore directed the Aggrieved Party’s representative to submit such evidence and argument.

My April 29 Order directed the Aggrieved Party’s representative to file an amended complaint within 30 days of the date of the Order. I advised the Aggrieved Party’s representative that if she did not submit an acceptable amended complaint, then I must issue a decision dismissing the unacceptable complaint. 42 C.F.R. § 426.410(c)(2).

More than 30 days have passed since I issued the April 29 Order and the Aggrieved Party’s representative has not filed a response amending the complaint. Therefore, for the reasons explained in that Order, the complaint received on April 15, 2019 remains unacceptable under 42 C.F.R. § 426.410(b). I am required to dismiss the unacceptable complaint. 42 C.F.R. § 426.410(c)(2). Accordingly, I order that the complaint be dismissed.