In re LCD Complaint: Frequency of Laboratory Tests, LCD ID Number L35099, DAB CR5772 (2020)

DECISION DISMISSING COMPLAINT

The Civil Remedies Division received correspondence from the Aggrieved Party on October 16, 2020, in which he sought review of what I construe as local coverage determination (LCD) L35099, Frequency of Laboratory Tests.

In an order dated October 23, 2020, 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.  In my order, I informed the Aggrieved Party that he had not filed an acceptable complaint.

I explained that because the Aggrieved Party had already received the service for which he had been denied reimbursement, a timely complaint must be filed within 120 days of the initial denial notice.  42 C.F.R. § 426.400(b).  The Aggrieved Party's complaint did not include evidence of the date of the initial notice denying his Medicare claim, and I ordered the Aggrieved Party to file a dated copy of the initial notice.

I also explained that an acceptable complaint must identify the LCD being challenged and 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 or identify any specific provision(s) of the LCD that adversely affected the Aggrieved Party, I ordered the Aggrieved Party to amend his complaint to include this information.

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Next, I explained that the Aggrieved Party's complaint lacked a statement "explaining what service is needed" and why he "thinks the provision(s) of the LCD is (are) not valid under the reasonableness standard."  See 42 C.F.R. § 426.400(c)(5).  I directed the Aggrieved Party to amend his 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 thinks that this evidence shows that the LCD is not reasonable."  Because the complaint lacked this evidence, I directed the Aggrieved Party to amend his complaint to include any clinical or scientific evidence.

Finally, I discussed that it appeared that the Aggrieved Party may be not be challenging an LCD, but rather, attempting to challenge either a National Coverage Determination (NCD) or a denial of a claim for Medicare benefits.  I explained that if the Aggrieved Party is attempting to challenge the NCD for lipid testing (190.23), I must dismiss the complaint pursuant to 42 C.F.R. §§ 426.405(d)(6) and 426.444(b)(1), (5).  I informed the Aggrieved Party that he may file an acceptable complaint challenging an NCD with the Departmental Appeals Board, and I cited the appeal procedures found at 42 C.F.R. § 426.500.  I also explained that, to the extent the Aggrieved Party is challenging the denial of a benefits claim, I lack jurisdiction over that matter.  42 C.F.R. § 405.904(a)(2).

I informed the Aggrieved Party that because he had filed an unacceptable complaint, he has one opportunity to amend his complaint, pursuant to 42 C.F.R. § 426.410(c)(1), within 30 days of the date of the order.  I cautioned the Aggrieved Party that if he did not submit an acceptable amended complaint, then I must issue a decision dismissing the unacceptable complaint pursuant to 42 C.F.R. § 426.410(c)(2).

The Aggrieved Party has not filed a response to my order, nor has he otherwise submitted an amended complaint in compliance with my order.1   As the Aggrieved Party has not submitted an acceptable complaint despite being given the opportunity to amend his complaint, I dismiss the complaint pursuant to 42 C.F.R. § 426.410(c)(2).

1. The Aggrieved Party also did not comply with a directive to, within 10 days, register for DAB E-File and request access to this case, or else submit a waiver request.
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