Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
In re CMS LCD Complaint:
B-type Natriuretic Peptide (BNP) Testing (L33943)
Docket No. C-19-771
Decision No. CR5417
September 12, 2019
DECISION DISMISSING UNACCEPTABLE COMPLAINT
The Civil Remedies Division received correspondence on May 6, 2019, from Paul Brautigam (the Aggrieved Party), which was treated as a challenge to a local coverage determination (LCD) and docketed as C-19-771 before me.
The applicable regulations require that I 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 that it was not an acceptable and valid LCD complaint under the applicable regulations. Therefore, on May 28, 2019, I issued an Acknowledgment of Receipt and Order to Amend Unacceptable Complaint (Order) in which I informed the Aggrieved Party that he had one opportunity to submit an acceptable complaint, as permitted pursuant to 42 C.F.R. § 426.410(c)(1).
The Order described the elements required to be included in an LCD complaint to make it acceptable. I specifically identified the deficiencies in the Aggrieved Party’s purported complaint, and directed him to resolve those deficiencies as follows:
- LCD-identifying information: The Aggrieved Party’s initial complaint was unacceptable because he did not identify an LCD that he sought to challenge. I therefore directed the Aggrieved Party to provide: (i) the name of the contractor using the LCD; (ii) the title of the LCD; and (iii) the specific provision of the LCD that adversely affected him.
- Aggrieved Party statement: The Aggrieved Party explained what service he sought, but did not provide a written statement explaining why he believes that the provision(s) of the LCD is (are) not valid under the reasonableness standard. I therefore 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 that this evidence shows that the LCD is not reasonable. I therefore directed the Aggrieved Party to submit such evidence and explanation.
My Order directed the Aggrieved Party to file an amended complaint by June 18, 2019. 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. Therefore, his initial complaint filed May 9, 2019 remains unacceptable under 42 C.F.R. § 426.410(b). I am required to dismiss the 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.
Bill ThomasAdministrative Law Judge
