In re CMS LCD Complaint: Surgical Dressings, DAB CR5603 (2020)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

Marcia K. Amaviska (the Aggrieved Party) submitted correspondence through her appointed representative which the Civil Remedies Division treated as a challenge to a local coverage determination (LCD) and docketed as C‑20‑382.  I was designated to review the purported LCD challenge.

The applicable regulations require that I first determine whether an aggrieved party filed an “acceptable” and “valid” complaint.  42 C.F.R. § 426.410(b).  Upon initial review, I noted that it appeared the Aggrieved Party had timely filed the request for hearing within 120 days of the initial denial notice.  However, I also noted that the Aggrieved Party had not filed an acceptable and valid LCD complaint under the applicable regulations.  Therefore, on March 19, 2020, I issued an Acknowledgment of Receipt and Order to Amend Unacceptable Complaint (Order) in which I informed the Aggrieved Party that she had one opportunity to submit an acceptable complaint.  See 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 directed the Aggrieved Party to provide all of the following information:

• LCD-identifying information:  The Aggrieved Party’s initial complaint was unacceptable because she did not identify the LCD that she sought to challenge.  I therefore directed the Aggrieved Party to identify the LCD that she wished to challenge and the specific provision(s) of the LCD that adversely affect her.

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• Aggrieved Party statement: The Aggrieved party’s initial complaint was unacceptable because, while she explained the service needed, she was required to provide a written statement explaining why she believes the LCD provision(s) is (are) invalid under the reasonableness standard.  I thus directed the Aggrieved Party to provide such a written statement.
• Clinical or scientific evidence:  The Aggrieved Party did not provide copies of clinical or scientific evidence in support of her complaint.  Nor did she explain why she 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 April 20, 2020.  I advised the Aggrieved Party that if she 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, her March 9, 2020 complaint remains unacceptable under 42 C.F.R. § 426.410(b).  I am required to dismiss an 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.