In re LCD Complaint: Positive Airway Pressure (PAP) Devices for the Treatment of Obstructive Sleep Apnea, DAB CR5698 (2020)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

Greg Golden (Aggrieved Party) submitted undated correspondence which the Civil Remedies Division treated as a challenge to a local coverage determination (LCD); docketed as styled above, C-20-631; and assigned to me for review.

The regulations at 42 C.F.R. § 426.410(b) require that I determine whether an aggrieved party has filed an “acceptable” and “valid” complaint.  After reviewing the Aggrieved Party’s filing, I concluded that it was not an acceptable and valid LCD complaint under the applicable regulations.  Therefore, in an Acknowledgment of Receipt and Order to Aggrieved Party to Amend Unacceptable Complaint (Order), dated July 2, 2020, I informed the Aggrieved Party that he had one opportunity to submit an acceptable complaint.1  See 42 C.F.R. § 426.410(c)(1).

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My July 2 Order listed the information that is 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:  Although the unacceptable complaint included the title of the LCD being challenged and the specific provision or provisions of the LCD adversely affecting the Aggrieved Party, it did not identify the name of the contractor using the LCD.  I therefore directed the Aggrieved Party to submit the name of the contractor using the LCD. 
• Aggrieved Party statement:  The unacceptable complaint explained what service the Aggrieved Party needs, but it did not explain why the Aggrieved Party contends that the provision(s) of the LCD is (are) not valid under the reasonableness standard.  I therefore directed the Aggrieved Party to submit a statement explaining his position.
• Clinical or scientific evidence:  Finally, 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 argument.

My Order directed the Aggrieved Party to file an amended complaint, using the DAB E‑File system, within 30 days of the date of the Order.  I advised the Aggrieved Party that if he did not submit an acceptable amended complaint, then I must issue a decision dismissing the unacceptable complaint.  42 C.F.R. § 426.410(c)(2).

More than 30 days have passed since I issued the July 2 Order, and the Aggrieved Party has not filed a response amending the complaint.  Therefore, for the reasons explained in that Order, the undated complaint submitted by the Aggrieved Party remains unacceptable under 42 C.F.R. § 426.410(b).  I am required to dismiss the unacceptable complaint.  42 C.F.R. § 426.410(c)(2).  Accordingly, I order that the complaint be dismissed.

1. In the Order, I noted that the Aggrieved Party’s filing describes a dispute with the supplier of his PAP device regarding the supplier’s interpretation of LCD L33718.  I advised the Aggrieved Party that suppliers of durable medical equipment are not parties to an administrative law judge’s review of an LCD, and therefore, even if I were to agree with his position, my decision would not be directed to the supplier.  I also noted that if the Aggrieved Party’s concern was that Medicare would not reimburse the supplier for a replacement PAP device, the process for appealing denied claims is completely separate and independent of the process for challenging an LCD.
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