In re LCD Complaint: Urological Supplies (L33803), DAB CR5520 (2020)

DECISION DISMISSING COMPLAINT

I dismiss the complaint in this case.  The party alleging to be aggrieved no longer qualifies as an aggrieved party inasmuch as a Medicare contractor paid the reimbursement claim that is the basis for the complaint in this case.

The party claiming to be aggrieved challenged a Medicare local coverage determination (LCD), LCD ID Number L33803, alleging that she had been denied coverage based on that LCD by Noridian Healthcare Solutions, a Medicare contractor.  On September 20, 2019, I issued an acknowledgment of receipt of an acceptable complaint, an order to the contractor to file the LCD record with me, and a briefing schedule for the aggrieved party and the contractor.

On January 6, 2020, the contractor filed a letter response.  In that letter, the contractor requested an extension of time to file a final brief because the contractor was engaging in an “LCD reconsideration process . . . which will address this matter.”  I infer from that statement that the contractor presently is considering whether to maintain, modify, or rescind the LCD at issue. 

However, the contractor also stated that, on January 2, 2020, it had reviewed the aggrieved party’s claim for reimbursement and “individual consideration was granted.” Thus, according to the contractor, the aggrieved party “has immediate relief in this matter.”

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The aggrieved party filed a response to the contractor’s letter on January 9, 2020.  In her response, the aggrieved party argues that I have no authority to stay the case.  Additionally, the aggrieved party disputes the contractor’s assertion that she has been provided with “immediate relief.”  According to the aggrieved party, it is unclear which of her claims for services have been paid.  She argues, additionally, that there is no guarantee that the contractor will not deny future claims for services based on the LCD.

In order to have standing as an aggrieved party, an individual challenging an LCD must be:  “in need of items or services that are the subject of the coverage determination.”  Social Security Act (Act) § 1869(f)(5); 42 C.F.R. § 426.110.  An individual who has received reimbursement from Medicare for a claimed service has no standing to challenge an LCD.  Likewise, an individual who is denied coverage for a claimed service based on an LCD loses standing to challenge the LCD if the contractor subsequently determines to pay the claim.  See Act § 1869(f)(5); 42 C.F.R. §§ 426.110, 426.320(a).

The regulation makes it clear that the burden falls entirely on the aggrieved party to establish that a reimbursement claim has been denied based on the provisions of an LCD.  42 C.F.R. § 426.330.  Absent proof that a specific claim has been denied, the aggrieved party has no standing to challenge the LCD.  In this case, the aggrieved party continues to assert that it is possible, or perhaps, likely, that the contractor has denied claims for services based on the terms of the LCD at issue.  However, the aggrieved party has not identified any specific claims for services that remain outstanding and that the contractor has denied.  Given that, there exists no basis for me to continue this case.

Furthermore, the possibility that the contractor may deny reimbursement claims in the future based on the terms of an LCD provides no basis for a hearing.  The regulation is clear:  there must be an actual, specific, denied claim predicated on the language of an LCD in order to create a basis for a hearing.

Finally, the aggrieved party argues that there may exist a class of Medicare beneficiaries who will be denied reimbursement for services based on the LCD even if she receives reimbursement.  The aggrieved party asserts that this possibility provides a basis for me to hear this case.  I disagree.  The regulations only allow for multiple parties to challenge an LCD in the circumstances where each challenging party meets the regulatory definition of an aggrieved party.  42 C.F.R. § 426.410(b)(1).  In order for me to grant a hearing, there must be an aggrieved party whose claim for reimbursement has been denied, specifically, based on the terms of an LCD.  Speculation that other individuals’ claims might be denied provides no ground for a hearing.

The aggrieved party has not established that there exist any claims for Medicare services that the contractor has denied predicated on the LCD at issue.  Consequently, no basis exists for this case to proceed and I must dismiss the complaint.

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Likewise, I deny the contractor’s request that I stay the case.  There is nothing for me to stay. The contractor may reconsider its LCD; however, I have no jurisdiction over that action.