In re LCD Complaint: MRI and CT Scans of the Head and Neck (L37373), DAB CR6188 (2022)

DECISION DISMISSING COMPLAINT

On October 17, 2022, the Civil Remedies Division received a filing from the Aggrieved Party styled as a challenge to Local Coverage Determination (LCD) L37373, “MRI and CT Scans of the Head and Neck.”  The Aggrieved Party reported that, apparently based on its application of the LCD, Noridian Healthcare Solutions, LLC, an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), determined that certain “ER charges” were “not necessary.”1  Complaint at 1 (E-Filing System (E-File) Document No. 1 at 1).  

In her filing, the aggrieved party conceded that her challenge to the LCD was “not within your time limits.”  Complaint at 1 (E-File Document No. 1 at 1).  Specifically, the Aggrieved Party listed dates of service that ranged from between December 2021 and February 2022.  Complaint at 1 (E-File Document No. 1 at 1).  Although the Aggrieved Party included an excerpt from what appears to be an initial denial notice, the submission did not indicate the date of the notice.  Complaint at 2-3 (E-File Document No. 1 at 2-3). 

In an Order dated October 20, 2022, I acknowledged receipt of the Aggrieved Party’s complaint.  I explained that, pursuant to 42 C.F.R. § 426.400(b), a complaint is not timely unless it is filed within six months of the issuance of a written statement from an aggrieved party’s treating practitioner, in the case of an aggrieved party who chooses to

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file an LCD challenge before receiving the service, or within 120 days of the initial denial notice in the case of an aggrieved party who chooses to file the LCD challenge after receiving the service.  I also explained that the applicable regulations do not authorize an administrative law judge (ALJ) to extend the 120-day deadline.  42 C.F.R. § 426.400(b); see 42 C.F.R. § 426.405(d)(13) (an ALJ may not find invalid applicable federal statutes or regulations). 

I explained that before determining whether the Aggrieved Party had filed an acceptable complaint, I must first address the threshold matter of whether she had timely challenged an LCD within 120 days of the receipt of the initial denial notice.  I ordered the Aggrieved Party, within 10 days, to submit a complete copy of any initial denial notice that is the subject of her LCD complaint, along with a statement listing the specific LCD(s) being challenged and the specific date of the corresponding initial denial notice.  I explained that if the Aggrieved Party established that she had filed a timely complaint, I would issue another order “addressing the acceptability of the complaint and any actions necessary to amend the complaint.”  See 42 C.F.R. § 426.400(c). 

In a response received on November 3, 2022, the Aggrieved Party conceded that she “was not able to challenge [the] LCD determinations in a timely manner” and stated that “[i]t is impossible for me to meet the requirements of filing a response now.”  The Aggrieved Party requested, “[y]ou can close my case.”  E-File Document No. 3.  Inasmuch as the Aggrieved Party also expressed general dissatisfaction with the contractor’s actions in this matter and her inability to challenge the LCD, I recognize the Aggrieved Party’s frustration.  However, I reiterate that I lack the authority to accept an untimely complaint.  42 C.F.R. §§ 426.400(b), 426.405(d)(13). 

The Aggrieved Party has requested that this matter be closed, and I accept this request as a withdrawal of the untimely complaint.  Pursuant to 42 C.F.R. § 426.423(a), an aggrieved party may withdraw a complaint before an ALJ issues a decision regarding the LCD.  “If the ALJ receives a withdrawal notice regarding an LCD before the date [he or she] issue[s] a decision regarding that LCD, the ALJ issues a decision dismissing the complaint under § 426.444 and informs the aggrieved party that he or she may not file another complaint to the same coverage determination for 6 months.”  42 C.F.R. § 426.423(c)(1).  Because the Aggrieved Party has withdrawn her complaint prior to the issuance of a decision, I dismiss the complaint.  The Aggrieved Party may not file another complaint challenging the same LCD for six months.  42 C.F.R. § 426.423(c)(1).