In re LCD Complaint:, DAB CR6554 (2024)

DECISION DISMISSING COMPLAINT

On August 14, 2024, the Civil Remedies Division received a mail submission dated August 6, 2024, from the Aggrieved Party, consisting of a cover letter and a physician statement from Bernard Gros, MD, FACC.  Departmental Appeals Board (DAB) Electronic Filing System (E-File) Docket Entry No. 1.  In her cover letter, the Aggrieved Party reported that she had been billed $306.46 by Quest for laboratory tests performed on December 14, 2023, that were purportedly denied reimbursement by Medicare.  Although the Aggrieved Party indicated that the subject of her cover letter was a “Local Coverage Determination [(LCD)] Challenge,” she did not identify a specific LCD that is the subject of her complaint.  DAB E-File Docket Entry No. 1.  Nor did the Aggrieved Party provide a copy of an initial notice denying Medicare reimbursement for services performed on December 14, 2023.

In an Order dated August 23, 2024, I acknowledged receipt of the Aggrieved Party’s complaint.  I explained that, pursuant to the applicable regulations, I am required to determine if the complaint is acceptable.  See 42 C.F.R. § 426.410(b).  I further explained that I must determine whether the complaint meets the requirements for a valid complaint as set forth in 42 C.F.R. § 426.400.  I informed the Aggrieved Party that she had not filed an acceptable complaint.

I explained that a complaint must be 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 file an LCD challenge before receiving the service, or else within 120 days of the initial denial notice if the aggrieved party has already received the service.  See 42 C.F.R. § 426.400(b).  I explained that the physician statement did not indicate whether the physician was a treating physician, and that the Aggrieved Party had

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not filed a copy of an initial denial notice, and therefore, I could not ascertain whether the complaint is timely.  See 42 C.F.R. § 426.400(b), (c)(3).

I discussed that an acceptable complaint must address the “specific provision or provisions of the LCD adversely affecting the aggrieved party.”  42 C.F.R. § 426.400(c)(4).  Because the complaint did not identify a specific LCD being challenged, much less a specific LCD provision, I ordered the Aggrieved Party to amend her complaint to include the specific LCD by name, the Medicare contractor, and the specific provision or provisions of the LCD that adversely affect her.

Likewise, I explained that the complaint lacked a statement explaining why “the provision(s) of [the challenged] LCD are not valid under the reasonableness standard.”  See 42 C.F.R. § 426.400(c)(5).  I directed the Aggrieved Party to amend her complaint to include this information.

I also explained that 42 C.F.R. § 426.400(c)(6) requires that the Aggrieved Party submit “[c]opies of clinical or scientific evidence that support the complaint and an explanation for why the aggrieved party believes that this evidence shows that the LCD is not reasonable.”  Because the complaint lacked this evidence and explanation, I directed the Aggrieved Party to amend her complaint accordingly.

I directed the Aggrieved Party to file a response within 30 days, addressing the missing information outlined above.  42 C.F.R. § 426.410(c)(1).

The Aggrieved Party filed a response dated September 3, 2024.  DAB E-File Docket Entry No. 3.  However, the Aggrieved Party’s response did not amend the complaint, as requested.  In particular, the Aggrieved Party has not identified an LCD or LCD provision that she is challenging. 1   See DAB E-File Docket Entry No. 3.  Because the Aggrieved Party failed to submit an acceptable complaint, even after being afforded an additional 30 days to amend her complaint, I “must issue a decision dismissing the unacceptable complaint.”  42 C.F.R. § 426.410(c)(2).  Therefore, I dismiss the Aggrieved Party’s complaint.