In re LCD Complaint: Lumbar MRI (L37281), DAB CR5464 (2019)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

Chris J. Stimson (the Complainant), submitted correspondence dated August 27, 2019, which the Civil Remedies Division treated as a challenge to a local coverage determination (LCD); docketed as styled above, C-19-1077; 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 Complainant's filing, I concluded that it was not 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, dated October 8, 2019, I informed the Complainant that he had one opportunity to submit an acceptable complaint. See 42 C.F.R. § 426.410(c)(1).

My October 8 Order listed the information that is required to be included in an LCD complaint to make it acceptable. I specifically directed the Complainant to provide all of the following information:

• LCD-identifying information. The specific provision(s) of the LCD adversely affecting the aggrieved party.
• Aggrieved party statement. A statement from the aggrieved party explaining what service is needed and why the aggrieved party thinks that the provision(s) of the LCD is (are) not valid under the reasonableness standard.
• Clinical or scientific evidence. Copies of clinical or scientific evidence that

Page 2

support the complaint and an explanation for why the aggrieved party thinks that this evidence shows that the LCD is not reasonable.

My October 8 Order directed the Complainant to file the amended complaint by October 30, 2019. I advised the Complainant that if he 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).

The Complainant responded to my order timely. However, his amended complaint (DAB E-File item #6) falls short in several respects. Although he included a paragraph that starts out as "Why the LCD is incorrect," he does not include anywhere in that paragraph an explanation for why he thinks the LCD he seeks to challenge is not valid under the reasonableness standard. Rather, he simply explains the circumstances that led to him receiving a treatment for which Medicare denied payment. This may count as a statement of why he needs the service, but it does not explain why he thinks the LCD is not valid, and he does not give such an explanation anywhere else in the amended complaint. Separately, the Complainant did not submit any clinical or scientific evidence to support his amended complaint. Lacking these elements, the Complainant's amended complaint is not a valid LCD complaint. 42 C.F.R. §§ 426.400(c), 426.410(b).

More basically, though, Complainant has not established that he is even an "aggrieved party" as that term is defined by regulation. As relevant here, an aggrieved party is "a Medicare beneficiary ... entitled to benefits under Part A, enrolled under Part B, or both ... [and] in need of coverage for a service that is denied based on an applicable LCD ...." 42 C.F.R. § 426.110. In supporting documents accompanying the complaint (DAB E-File item #1b), the Complainant submitted a copy of page 2 of a claim denial showing that Medicare did not approve coverage for the service he received. That document does not explain why Medicare did not approve coverage, whether due to an LCD or otherwise. It is thus not clear that the Complainant is an aggrieved party because, even though he appears to be a Medicare beneficiary entitled to benefits, he has not established that he is in need of coverage for a service that was denied based on an applicable LCD.