In re LCD Complaint: Percutaneous Arteriovenous Fistula (pAVF) for Hemodialysis (L38573), DAB CR6075 (2022)

DECISION DISMISSING COMPLAINT

I dismiss the complaint, as amended, filed against Local Coverage Determination (LCD) ID No. L38573 because National Government Services (NGS) retired the LCD, effective May 5, 2022.  42 C.F.R. § 426.420(e)(1).

I.  Background

On September 9, 2021, the Aggrieved Party filed a complaint with the Civil Remedies Division seeking review of the validity of the LCD regarding Percutaneous Arteriovenous Fistula (pAVF) for Hemodialysis, LCD ID No. L38573.

Upon evaluation of the Aggrieved Party’s complaint, I found that it did not meet all the requirements for a valid complaint as set forth in 42 C.F.R. § 426.400 and was therefore not acceptable.  I issued an acknowledgment and order, in which I directed the Aggrieved Party to submit, within 30 days, a valid amended complaint that addressed the deficiencies which I identified.

The Aggrieved Party timely responded to my Order.  After reviewing the Aggrieved Party’s submission, I found that the amended complaint was acceptable.  On November 5, 2021, I issued an Order finding the amended complaint acceptable and establishing a schedule for the submission of the LCD record and the parties’ arguments as to whether the LCD record was complete and adequate to support the validity of L38573 under the

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reasonableness standard.  42 U.S.C. § 1395ff(f)(2)(A)(i)(I); 42 C.F.R. §§ 426.403, 426.405(b), 426.425, 426.431.

It is unnecessary for me to recite the whole procedural history of this case.  I note that, on March 3, 2022, I established new deadlines for the parties to file statements addressing the substantive issues.  Under the new deadlines, NGS was to file its response in defense of the LCD by May 9, 2022.

On May 3, 2022, NGS filed a notice advising that, effective May 5, 2022, it was going to retire LCD ID No. L38573, along with accompanying articles A58538 and A58037.  NGS also moved for an extension of its filing deadline, which I granted.

On May 12, 2022, NGS filed a notice that it had retired LCD ID No. L38573 and accompanying articles and moved to dismiss this case on the ground that it had retired the LCD that is at issue.  NGS advised me that the Aggrieved Party did not object to my entering an order dismissing the case inasmuch as the LCD is retired.

II.  Analysis

Under the applicable regulations, a contractor may retire an LCD at any time before the date the administrative law judge issues a decision regarding that LCD.  42 C.F.R. § 426.420(a).  Retiring an LCD under review has the same effect as a decision finding that the challenged LCD provision is invalid under the reasonableness standard.  42 C.F.R. §§ 426.420(a), 426.460(b).  I have no authority to review a retired LCD.  42 C.F.R. § 424.405(d)(4).  Pursuant to 42 C.F.R. § 426.420(e)(1), I must dismiss a complaint upon receiving notice that the contractor has retired the LCD that is the subject of an aggrieved party’s complaint.

Accordingly, because NGS has retired LCD No. L38573, I must dismiss the complaint before me.  42 C.F.R. §§ 426.420(e)(1), 426.405(d)(4), 426.444(b)(1).  I inform the Aggrieved Party that she may receive individual claim review without the contractor applying the retired LCD.  42 C.F.R. § 426.420(e)(1).

Because NGS has retired the LCD provision under review, this decision is not subject to appeal.  42 C.F.R. § 426.465(d)(1).