In re LCD Complaint: Facet Joint Injections, Medial Branch Blocks, and Facet Joint Radiofrequency Neurotomy (Noridian Healthcare Solutions - L34993), DAB CR5876 (2021)

DECISION DISMISSING LOCAL COVERAGE DETERMINATION COMPLAINT

On February 27, 2021, a Local Coverage Determination (LCD) complaint was filed by mail on behalf of a Medicare beneficiary (Beneficiary).The names of Medicare beneficiaries are not listed in published decisions to protect their privacy.  68 Fed. Reg. 63,691, 63,711 (Nov. 7, 2003).  The complaint is dismissed as required by 42 C.F.R. § 426.410(c)(2) because it is unacceptable.  The Beneficiary is entitled to request further review by the Appellate Division of the Departmental Appeals Board (the Board) as explained hereafter.

I.  Background

In a letter dated February 25, 2021, and postmarked February 27, 2021 the Beneficiary's representative requested that Medicare pay for the Beneficiary to receive bilateral greater and lesser occipital nerve radiofrequency ablation more frequently than authorized under Noridian Healthcare Solutions LLC's (Noridian) LCD L34993, Facet Joint Injections, Medial Branch Blocks, and Facet Joint Radiofrequency Neurotomy.LCD L34993 was retired effective April 24, 2021.  The retired LCD is available at https://www.cms.gov/medicare-coverage-database/details/lcd-details.aspx?lcdid=34993&ver=31&bc=CAAAAAAAAAAA (last visited May 25, 2021).  The Beneficiary

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and her physician represent that the Beneficiary requires bilateral greater and lesser occipital nerve radiofrequency ablation for pain relief in the occipital area of the head.

The case was assigned to me on March 31, 2021.  I advised the Beneficiary's representative by letter dated March 31, 2021, that I had evaluated the complaint pursuant to 42 C.F.R. § 426.410 and concluded that it was unacceptable.  Therefore, I granted the Beneficiary until May 5, 2021, to file an acceptable amended complaint.  As of the date of this decision, the Beneficiary has filed no response and no amended complaint.

II.  Discussion

A.  Applicable Law

Section 1862 of the Social Security Act (the Act) (42 U.S.C. § 1395y), which is applicable to both Medicare Part A and Part B, provides that no payment may be made for items or services "which . . . are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member . . . ."  Act § 1862(a)(1)(A).  The Secretary of the Department of Health and Human Services (the Secretary) has provided by regulation that any services not reasonable and necessary for one of the purposes listed in the regulations are excluded from coverage under Medicare.  42 C.F.R. § 411.15(k).  The Medicare Benefit Policy Manual, CMS pub. 100-02, ch.16, §§ 10 (rev. 198, eff. Jan. 1, 2015) and 20 (rev. 1, eff. Oct. 1, 2003), provides that no payment may be made for items and services that are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.

The Centers for Medicare and Medicaid Services (CMS) administers the Medicare program (Act §§ 1102, 1871, 1874 (42 U.S.C. §§ 1302, 1395hh, 1395kk)) and contracts with carriers and intermediaries (Medicare contractors) such as Noridian to act on its behalf in determining and making payments to providers and suppliers of Medicare items and services.  Act §§ 1816, 1842 (42 U.S.C. §§ 1395h, 1395u).  The Act provides for both National Coverage Determinations (NCD) and LCDs.  Act § 1869(f)(1)(B) and (2)(B) (42 U.S.C. § 1395ff(f)(1)(B) and (2)(B)).  An LCD, as defined by the Act, is "a determination by a fiscal intermediary or a carrier . . . respecting whether or not a particular item or service is covered" within the area covered by the contractor.  Act § 1869(f)(2)(B) (42 U.S.C. § 1395ff(f)(2)(B)); 42 C.F.R. § 400.202.  In the absence of a NCD or an LCD, individual claims determinations are made based upon an individual beneficiary's particular factual situation.  68 Fed. Reg. at 63,693 (citing Heckler v. Ringer, 466 U.S. 602, 617 (1984) (recognizing that the Secretary has discretion to either establish a generally applicable rule or to allow individual adjudication)); 42 C.F.R. §§ 426.420(a), (b), (e)(1), 426.460(b)(1), 426.488(b).

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A Medicare beneficiary who has been denied coverage for an item or service based on an LCD may challenge that LCD before an administrative law judge (ALJ), if the beneficiary meets the requirements to be an aggrieved party under 42 C.F.R. §§ 426.110, 426.410(b)(1).  The aggrieved party initiates ALJ review by filing a written complaint that meets the criteria specified in the governing regulations.  42 C.F.R. §§ 426.400, 426.410(b)(2).  If an ALJ determines that the complaint is unacceptable, the ALJ must provide the aggrieved party one opportunity to amend the unacceptable complaint.  42 C.F.R. § 426.410(c)(1).  If the aggrieved party fails to submit an acceptable amended complaint within a reasonable timeframe as determined by the ALJ, the ALJ must issue a decision dismissing the unacceptable complaint.  42 C.F.R. § 426.410(c)(2).  If a complaint is determined unacceptable after one amendment, the beneficiary is precluded from filing again for six months after being informed that it is unacceptable.  42 C.F.R. § 426.410(c)(3).

B.  Findings of Fact, Conclusions of Law, and Analysis

1.  The Beneficiary failed to file an amended complaint within the allotted timeframe, and dismissal is required by 42 C.F.R. § 426.410(c)(2).

In my letter to the Beneficiary's representative dated March 31, 2021, I advised the Beneficiary that her complaint was not acceptable because she failed to submit documents showing the Medicare contractor had denied or would deny her claim based on the LCD; the statement of her physician was undated; and she failed to submit any clinical or scientific evidence to show that the LCD coverage limitation was unreasonable.

I gave the Beneficiary reasonable time, until May 5, 2021, to amend her complaint.  I advised the Beneficiary that her amended complaint must satisfy all the requirements for an acceptable complaint specified at 42 C.F.R. § 426.400.  I advised her that if the amended complaint did not contain all the required information, I would dismiss the case.

No amended complaint has been received, and dismissal is required by 42 C.F.R. § 426.410(c)(2).

2.  Appeal rights.  42 C.F.R. §§ 426.462, 426.465.

Pursuant to 42 C.F.R. § 426.465(a), an aggrieved party may request review by the Board.  Except upon a showing of good cause, a request for review by the Board must be filed within 30 days of the date of this decision (42 C.F.R. § 426.465(e)) and must comply with the requirements of 42 C.F.R. § 426.465(f).

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III.  Conclusion

For the foregoing reasons, the complaint is dismissed.