In re CMS LCD Complaint: Refractive Lenses (L33793) CR6325 (2023)

DECISION DISMISSING UNACCEPTABLE COMPLAINT

Diane D. Calagione (the Aggrieved Party) timely filed a hearing request in the Civil Remedies Division (CRD) of the Departmental Appeals Board (DAB) to challenge application of a local coverage determination (LCD) to deny a claim for service under the Medicare program.  That hearing request was docketed as C-23-528 before me.

The applicable regulations require me to first determine whether an aggrieved party has filed an “acceptable” and “valid” complaint.  42 C.F.R. § 426.410(b).  After reviewing the Aggrieved Party’s filing, I concluded it was not an acceptable and valid LCD complaint.  Therefore, on June 22, 2023, I issued an Acknowledgment of Receipt and Order to Amend Unacceptable Complaint (Order) to afford the Aggrieved Party one opportunity to submit an acceptable complaint.  42 C.F.R. § 426.410(c)(1).

That Order described the elements needed for an acceptable LCD complaint.  I identified one deficiency in the Aggrieved Party’s complaint and gave her the opportunity to resolve that deficiency:

• Clinical or scientific evidence:  The Aggrieved Party did not provide copies of clinical or scientific evidence in support of her complaint or explain why she believes such evidence would show application of the LCD to be unreasonable. 

I therefore directed the Aggrieved Party to provide copies of clinical or scientific evidence that support her complaint and to explain why she believes this evidence shows the LCD is not reasonable.  See 42 C.F.R. § 426.400(c)(6).

I also required the Aggrieved Party to either register for access to the DAB E-file system or request a waiver from its use in writing.  I enclosed instructions for registration and use of the DAB E-file system.

Page 2

My Order directed the Aggrieved Party to file an amended complaint by July 21, 2023.  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.  Her initial complaint filed June 16, 2023 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.