In re CMS LCD Complaint: Scanning Computerized Ophthalmic Diagnostic Imaging (SCODI) (L33751), DAB CR5513 (2020)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

The American Society of Retina Specialists (ASRS) submitted correspondence dated November 18, 2019, which the Civil Remedies Division treated as a challenge to a local coverage determination (LCD); docketed as styled above, C-20-159; and assigned to me for review.

After an LCD complaint is docketed, the assigned administrative law judge determines if the complaint is acceptable by confirming, among other things, that “[t]he complaint is being submitted by an aggrieved party. . . .”  42 C.F.R. § 426.410(b)(1).  An aggrieved party is defined as a Medicare beneficiary who is entitled to benefits under Part A, enrolled in Part B, or both, and is in need of coverage for a service that is denied based on an LCD.  Social Security Act § 1869(f)(5) (42 U.S.C. § 1395ff(f)(5)); 42 C.F.R. § 426.110.  An administrative law judge must dismiss a complaint that was not filed by an aggrieved party.  42 C.F.R. § 426.444(b)(3).

In accordance with the cited regulations, I reviewed the purported LCD complaint ASRS submitted.  My review suggested that ASRS is not an aggrieved party.  Nor did ASRS claim to represent any individual meeting the definition of aggrieved party.  Therefore, in an Acknowledgment of Receipt and Order to Show Cause (Order), dated December 12, 2019, I directed ASRS to show cause why its complaint should not be dismissed pursuant to 42 C.F.R. § 426.444(b)(3) because the complaint was not filed by an aggrieved party.  My Order directed ASRS to file a response by December 31, 2019.

Page 2

The deadline for ASRS to respond has passed, and ASRS did not file a response.  I construe the failure to respond as an admission that ASRS is not an aggrieved party as defined in the statute and regulations.  I therefore conclude that the November 18, 2019 complaint submitted by ASRS is not acceptable because it was not filed by an aggrieved party.  I am required to dismiss the unacceptable complaint.  42 C.F.R. §§ 426.410(c)(2), 426.444(b)(3).  Accordingly, I order that the complaint be dismissed.