In re CMS LCD Complaint: Seat Lift Mechanisms (L33801), DAB CR6210 (2022)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

The Civil Remedies Division (CRD) of the Departmental Appeals Board received correspondence dated October 6, 2022, from Karen S. Tichnell on behalf of her husband, Alfred Tichnell (the Aggrieved Party).  CRD treated this correspondence as a challenge to a local coverage determination (LCD) and docketed the case as C-23-38 before me.

The applicable regulations require me to first determine whether an aggrieved party has filed an “acceptable” and “valid” complaint.  42 C.F.R. § 426.410(b).  After reviewing the Aggrieved Party’s filing, I concluded it was not an acceptable and valid LCD complaint under the applicable regulations.  Therefore, on October 27, 2022, I issued an Acknowledgment of Receipt and Order to Amend Unacceptable Complaint (Order) in which I afforded the Aggrieved Party one opportunity to submit an acceptable complaint.  See 42 C.F.R. § 426.410(c)(1).

The Order described the elements needed for an acceptable LCD complaint.  I identified specific deficiencies in the Aggrieved Party’s complaint and directed him to resolve those deficiencies:

• Timeliness:  I explained the Aggrieved Party’s complaintwas unacceptable because, based on the information contained in the initial filings, I was unable to ascertain whether it was timely.  I directed the Aggrieved Party to submit additional arguments and evidence, including the four missing pages of the denial he attached to his hearing request, and to explain why he believes his complaint was timely filed.
• Aggrieved Party statement:  The Aggrieved Party identified the item or service he sought but failed to provide a written statement explaining why he believes the

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• provisions(s) of an LCD is (are) not valid under the reasonableness standard.  I directed the Aggrieved Party to provide such statement.
• Clinical or scientific evidence:  The Aggrieved Party did not provide copies of clinical or scientific evidence in support of his complaint.  Nor did he explain why he believes such evidence would show the LCD to be unreasonable.  I directed the Aggrieved Party to provide copies of clinical or scientific evidence that support his complaint and to explain why he believes this evidence shows the LCD is not reasonable.

I also required the Aggrieved Party to either register for access to the DAB E-file system or request a waiver from its use in writing.  I enclosed instructions for registration and use of the DAB E-file system.

My Order directed the Aggrieved Party to file an amended complaint by December 1, 2022.  I advised the Aggrieved Party that if he did not submit an acceptable amended complaint by that time, I would issue a decision dismissing this action.  42 C.F.R. § 426.410(c)(2).

The Aggrieved Party has not filed a response since that time.  His initial complaint filed October 6, 2022, remains unacceptable under 42 C.F.R. § 426.410(b).  I am required to dismiss an unacceptable complaint after giving an aggrieved party the opportunity to amend it.  42 C.F.R. § 426.410(c)(2).  Accordingly, I order this complaint dismissed.

SO ORDERED.