In re LCD Complaint: Wheelchair Options/Accessories, DAB CR5910 (2021)

DECISION DISMISSING COMPLAINT

On June 28, 2021, the Aggrieved Party filed a document styled as a challenge to Local Coverage Determination (LCD) L33792, "Wheelchair Options/Accessories."  The Aggrieved Party reported that CGS Administrators, LLC (CGS), an administrative contractor for the Centers for Medicare & Medicaid Services (CMS), had "denied coverage for the power elevating seat (E2300) and power standing (E2301) power seating [wheelchair] options," and that "[t]his appears to be the result of the Policy Article A52504."  Complaint at 1.

In an Order dated July 8, 2021, 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 he had not filed an acceptable complaint.

I explained that a timely complaint must be filed within 120 days of the initial denial notice, and that the complaint did not include evidence of the date of the initial notice denying the Aggrieved Party’s Medicare claim.  See 42 C.F.R. § 426.400(b).  I also 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, and that the Aggrieved Party had not submitted a dated statement from a treating physician.  See

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42 C.F.R. § 426.400(b)(1).  I ordered the Aggrieved Party to submit documentation supporting the timeliness of the complaint.

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 provision being challenged, I ordered the Aggrieved Party to amend his complaint to include this information.

Likewise, I explained that the complaint lacked a statement explaining why "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 and explanation, I directed the Aggrieved Party to amend his complaint accordingly. 

Finally, I discussed that the Aggrieved Party acknowledged he was challenging Policy Article A52504, rather than an LCD.  Complaint at 1 (stating the denial of coverage "appears to be the result of the Policy Article A52504" and that "[t]he LCD Policy Article is wrong.").  I explained that an administrative law judge (ALJ) is authorized to review an LCD, but is not empowered to review any policy that is not an LCD.  42 C.F.R. §§ 426.325(a), (b)(5), (12), 426.405(d)(5).  I observed that the LCD listed in the complaint, L33792, does not deny Medicare coverage for power elevating seat (E2300) or power standing seat (E2301) wheelchair features; rather, Policy Article A52504 denies coverage for these items.  I cited a Departmental Appeals Board (DAB) decision that reviewed a challenge to essentially the same LCD and policy article, in which the DAB stated, "[t]he determination that power seat elevators are excluded from coverage for not meeting the definition of [durable medical equipment] for which coverage is available under section 1861(n) of the Act . . . was a statutory exclusion determination."  See LCD Complaint L11451, DAB No. 2370 at 7 (2011).  I also summarized the DAB’s explanation that "the limited review process applicable only to LCDs was not available" to the aggrieved party, and that the "policy article was not an LCD as defined in the Act and regulations, and was instead a statutory exclusion determination."  See id. at 8.  I noted the DAB’s determination that "the ALJ should have dismissed the appeal" because "the limited review process applicable only to LCDs was not available."  See id.  I ordered the Aggrieved Party to address whether I have jurisdiction over his complaint.

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The Aggrieved Party declined to submit an acceptable complaint.  Rather, on July 15, 2021, the Aggrieved Party filed a letter stating, in pertinent part:  "Given the content of the [July 8, 2021] order and the information finally provided by CMS, I am withdrawing my challenge [to] the LCD effective today July 15, 2021."

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 [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 his 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).