In re LCD Complaint: Routine Foot Care (L35138); Debridement of Mycotic Nails (L35013), DAB CR6241 (2023)

DECISION DISMSSING COMPLAINT

In an acknowledgment dated January 12, 2023, the Civil Remedies Division of the Departmental Appeals Board acknowledged that it had received correspondence, dated December 19, 2022, from an aggrieved party.  She complains that, because of two local coverage determinations (LCDs), Medicare covers routine foot care and nail debridement treatments every 60 days, but not more often.  She maintains that she requires the treatments every 35-42 days.¹ 

In the January 12 acknowledgment, I explained that the regulations governing these proceedings do not allow me to accept an incomplete complaint and that I had determined that her complaint did not meet the regulatory requirements.  42 C.F.R. § 426.410(b)(1) and (2).  Pursuant to 42 C.F.R. § 426.410(c)(1), I offered her an opportunity to file an acceptable complaint and directed her to do so no later than February 15, 2022.  I advised her that her amended complaint should include the following information: 

• An aggrieved party statement explaining why she thinks that the provisions of the LCDs are not valid under a reasonableness standard.  42 C.F.R. § 426.400(c)(5); and

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• Clinical or scientific evidence that supports the complaint, along with an explanation as to why this evidence shows that the LCD is not reasonable.  42 C.F.R. § 426.400(c)(6).

The aggrieved party responded with her explanation as to why she thinks the LCD provisions are not valid.  I find that her statement satisfies the requirements of section 426.400(c)(5). 

However, in lieu of clinical or scientific evidence to support her complaint, the aggrieved party submitted a medical coverage policy from Blue Cross/Blue Shield of Rhode Island.  The policy describes various foot care procedures and the circumstances under which Blue Cross covers them.  A private insurer’s coverage policy cannot be considered clinical or scientific evidence.  Moreover, nothing in that submission suggests that the LCD’s are unreasonable because they limit the frequency of coverage. 

Because the aggrieved party has not, within the timeframe established, submitted an acceptable amended complaint, I dismiss this action pursuant to 42 C.F.R. § 426.410(c)(2).  

Endnotes

¹   In error, the Aggrieved Party suggests that Medicare does not allow her to schedule appointments more frequently than every nine weeks.  She may schedule appointments as often as she likes.  However, Medicare will not pay for procedures more often than every 60 days.