In re LCD Complaint: Magnesium (L39400) DAB CR6746 (2025)

DECISION DISMISSING LCD COMPLAINT

The complaint of an Aggrieved Party dated June 10, 2025, challenging LCD L39400, Magnesium, issued by Palmetto GBA, is dismissed as unacceptable pursuant to 42 C.F.R. § 426.410(c)(2).1  The Aggrieved Party is entitled to request further review by the Appellate Division of the Departmental Appeals Board (the Board) as explained hereafter.  

I. Background

By letter dated June 10, 2025, postmarked June 11, 2025, the Aggrieved Party requested review of LCD L39400 Magnesium.  The case was assigned to me on June 26, 2025.  I advised the Aggrieved Party by letter dated June 26, 2025, that I had evaluated his complaint pursuant to 42 C.F.R. § 426.410 and concluded that it was unacceptable.  Therefore, I granted the Aggrieved Party until July 30, 2025, to file an acceptable amended complaint.  As of the date of this decision, the Aggrieved Party has filed no response and no amended complaint. 

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II. Discussion

1. A. Applicable Law

Section 1862 of the Social Security Act (the Act) (42 U.S.C. § 1395y), which is applicable to both Medicare Part A and Part B, provides that no payment may be made for items or services “which . . . are not reasonable and necessary for the diagnosis or treatment of illnesses or injury or to improve the functioning of a malformed body member . . . .”  The Secretary of the Department of Health and Human Services (the Secretary) has provided by regulation that any services not reasonable and necessary for one of the purposes listed in the regulations are excluded from coverage under Medicare.  42 C.F.R. § 411.15(k).  The Medicare Benefit Policy Manual, CMS pub. 100-02, ch.16, §§ 10 and 20, provides that no payment may be made for items and services that are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. 

The Centers for Medicare and Medicaid Services (CMS) administers the Medicare program (Act §§ 1102, 1871, 1874) and contracts with carriers and intermediaries (Medicare contractors) to act on its behalf in determining and making payments to providers and suppliers of Medicare items and services.  Act §§ 1816, 1842.  The Act provides for both National Coverage Determinations (NCD) and LCDs.  Act § 1869(f)(1)(B), (2)(B) (42 U.S.C. § 1395ff(f)(1)(B), (2)(B)).  An LCD, as defined by the Act, is “a determination by a fiscal intermediary or a carrier . . . respecting whether or not a particular item or service is covered” within the area covered by the contractor.  Act   § 1869(f)(2)(B) (42 U.S.C. § 1395ff(f)(2)(B)); 42 C.F.R. § 400.202.  In the absence of a NCD or a LCD, individual claims determinations are made based upon an individual beneficiary’s particular factual situation.  68 Fed. Reg. 63,691, 63,693 (2003) (citing Heckler v. Ringer, 466 U.S. 602, 617 (1984) (recognizing that the Secretary has discretion to either establish a generally applicable rule or to allow individual adjudication)); 42 C.F.R. §§ 426.420(a), (b), (e)(1), 426.460(b)(1), 426.488(b). 

An aggrieved Medicare beneficiary who has been denied coverage for an item or service based on an LCD may challenge that LCD before an administrative law judge (ALJ).  The aggrieved party initiates the review by filing a written complaint that meets the criteria specified in the governing regulations.  42 C.F.R. §§ 426.400, 426.410(b)(2).  If an ALJ determines that the complaint is unacceptable, the ALJ must provide the aggrieved party one opportunity to amend the unacceptable complaint.  42 C.F.R. § 426.410(c)(2).  If the aggrieved party fails to submit an acceptable amended complaint within a reasonable timeframe as determined by the ALJ, the ALJ must issue a decision dismissing the unacceptable complaint.  42 C.F.R. § 426.410(c)(2).  If a complaint is determined unacceptable after one amendment, the beneficiary is precluded from filing again for six months after being informed that it is unacceptable.  42 C.F.R. § 426.410(c)(3). 

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1. B. Findings of Fact, Conclusions of Law, and Analysis
   1. 1. The Aggrieved Party failed to file an amended complaint within the allotted timeframe and dismissal is required by 42 C.F.R. § 426.410(c)(2).

In my letter to the Aggrieved Party dated June 26, 2025, I advised him that he submitted a statement and order of his physician reflecting that he needed testing of his magnesium level.  But, other than his doctor’s statement, he failed to submit copies of scientific articles or other evidence to support his position that the Medicare administrative contractor’s (MAC) LCD determination that magnesium testing is not reasonable and necessary is not reasonable. 42 C.F.R. § 426.400(c)(6). 

I gave the Aggrieved Party a reasonable time until July 30, 2025, to amend his complaint.  I advised the Aggrieved Party that his amended complaint must satisfy all the requirements for an acceptable complaint specified at 42 C.F.R. § 426.400.  I advised him that if the amended complaint did not contain all the required information, I would dismiss his case.  

No amended complaint has been received and dismissal is mandated by 42 C.F.R. § 426.410(c)(2).  

2. 2. Appeal rights. 42 C.F.R. §§ 426.462, 426.465.  

Pursuant to 42 C.F.R. § 426.465(a), an aggrieved party may request review by the Board.  Except upon a showing of good cause, a request for review by the Board must be filed within 30 days of the date of this decision (42 C.F.R. § 426.465(e)) and must comply with the requirements of 42 C.F.R. § 426.465(f). 

III.  Conclusion

For the foregoing reasons, the compliant is dismissed.