In re LCD Complaint: CT of the Abdomen and Pelvis (L34415), DAB CR6339 (2023)

DECISION DISMISSING COMPLAINT

On August 2, 2023, the Civil Remedies Division received the Aggrieved Party’s submission, consisting of a complaint and supporting documents.  The Aggrieved Party reported that Palmetto GBA, a Medicare contractor, applied the “wrong code” when it denied reimbursement for an April 5, 2023 CT scan of the abdomen and pelvis, and that it should have applied “A56421,” a billing and coding article, rather than local coverage determination (LCD) L34415, “CT of the Abdomen and Pelvis.”  The Aggrieved Party, who is pro se, argued that application of A56421 would have yielded a favorable determination that her CT scan was a medically necessary procedure.

The Aggrieved Party has filed a complaint, an amended complaint, and supporting documents; dismissal is required pursuant to 42 C.F.R. § 426.410(c) because the Aggrieved Party did not file an acceptable complaint.¹

In an order dated August 14, 2023, I acknowledged receipt of the Aggrieved Party’s complaint.  I explained that, pursuant to the applicable regulations, I am required to determine if the complaint is acceptable.  See 42 C.F.R. § 426.410(b).  I further explained that I must determine whether the complaint meets the requirements for a valid complaint as set forth in 42 C.F.R. § 426.400.  I informed the Aggrieved Party that she had not filed an acceptable complaint, explaining:

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The Aggrieved Party’s one-page complaint did not list her claim number, the full title of the LCD being challenged, or the Medicare contractor.  42 C.F.R. § 426.400(c)(1)(v), (c)(4)(i)-(ii).  And to the extent the Aggrieved Party has been denied coverage pursuant to LCD L34415, the Aggrieved Party has not identified any specific provision of LCD L34415 that adversely affects her.  42 C.F.R. § 426.400(c)(4)(iii).  Nor has the Aggrieved Party articulated why the provision(s) of that LCD are not valid under the reasonableness standard.  42 C.F.R. § 426.400(c)(5).  Finally, the Aggrieved Party did not submit clinical or scientific evidence supporting her complaint, nor did she explain how this evidence shows that the LCD is not reasonable.  42 C.F.R. § 426.400(c)(6).

August 14, 2023 Order at 3 (footnote omitted).  Additionally, I explained that “to the extent the Aggrieved Party argues that the Medicare contractor should have relied on a billing and coding article, A56421, rather than LCD L34415, I cannot review such a matter.”  I further explained that, pursuant to 42 C.F.R. § 426.110, the scope of my review is “whether an LCD is valid under the reasonableness standard.”

I directed the Aggrieved Party to submit a response addressing the items discussed in the paragraph quoted above.  I also directed the Aggrieved Party to clarify whether she is “actually challenging an LCD provision.”

When an Aggrieved Party files an unacceptable complaint, an administrative law judge must offer the Aggrieved Party an opportunity to amend the complaint, pursuant to 42 C.F.R. § 426.410(c)(1).  If the Aggrieved Party fails to submit an acceptable amended complaint within the timeframe set by the ALJ, the ALJ “must issue a decision dismissing the unacceptable complaint.”  42 C.F.R. § 426.410(c).

I afforded the Aggrieved Party an opportunity to amend her unacceptable complaint, and the Aggrieved Party filed a response to my order, to include an amended complaint and supporting documents.  However, the Aggrieved Party did not articulate why the provision(s) of that LCD are not valid under the reasonableness standard.  42 C.F.R. § 426.400(c)(5).  Additionally, the Aggrieved Party neither submitted clinical or scientific evidence supporting her complaint (i.e., showing that a provision of the LCD is not reasonable), nor explained how this evidence shows that the LCD is not reasonable.  42 C.F.R. § 426.400(c)(6).  Because the Aggrieved Party did not file an acceptable complaint, I am required to dismiss the unacceptable complaint.  42 C.F.R. § 426.410(c).

I am referring the Aggrieved Party’s complaint to the Medicare contractor for consideration as a timely request for redetermination.

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Based on my review of the Aggrieved Party’s complaint and amended complaint, it appears that the Aggrieved Party may not be challenging the reasonableness of a provision or provisions of L34415, itself, but rather, is attempting to challenge Palmetto GBA’s application of L34415 to her circumstances.  Specifically, the Aggrieved Party stated the following in her amended complaint:

As stated in Exhibit 2, the contractor, Palmetto GBA, jurisdiction M, used the LCD L34415 in this denial.  According to the cms.gov Medicare coverage database and coverage guidance, “The CT scan of the abdomen will be considered medically reasonable and necessary under the following circumstance:  “Evaluation of known or suspected abdominal masses.”  Further, it states that “A CT scan of the pelvis will be considered medically necessary and reasonable under the following circumstances:  “evaluation of cysts, tumors, or masses of the pelvic structure.”  This appeal challenges Palmetto’s assessment that the procedure was medically unnecessary.  The Doctor statement in exhibit 1 clearly states this medical necessity.

Amended Complaint at 1.  It appears that the Aggrieved Party is arguing that had the Medicare contractor correctly applied L34415, it would have approved reimbursement for her April 5, 2023 CT scan of the abdomen and pelvis.  I do not have the authority to decide whether a Medicare claim should be paid or denied.  42 C.F.R. § 426.455(b).  My role is limited to deciding a legal challenge to an LCD provision or provisions.  42 U.S.C. § 1395ff(f).  The review of a Medicare claim that was purportedly wrongly decided based on reliance on an LCD involves a completely separate process than the review of whether an LCD provision is reasonable.  42 C.F.R. § 426.310.  To the extent the Aggrieved Party’s complaint can be interpreted as a challenge to how Palmetto applied the LCD, rather than a challenge to the reasonableness of the LCD, itself, I have directed Civil Remedies Division staff to forward this decision, along with a copy of all of the Aggrieved Party’s filings in this matter, for consideration by the Medicare contractor as a timely filed request for redetermination.  See 42 C.F.R. § 405.942(a).

I note that the Aggrieved Party submitted a May 2, 2023 statement from her physician that she has a history of “malignant desmoid fibromatosis status post surgical resection . . . [that] requires surveillance CT scan [i]maging to ensure that there is no evidence of local recurrence or metastatic disease.”  Aggrieved Party (AP) Ex. 1 at 1.  The Aggrieved Party’s physician further reported that the April 5, 2023 CT scan was a “medically necessary imaging procedure to ensure no evidence of recurrent disease that might need further treatment for curative [i]ntent.”  AP Ex. 1 at 1.  As previously discussed, the Aggrieved Party stated in her amended complaint that, pursuant to L34415, “[t]he CT

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scan of the abdomen will be considered medically reasonable and necessary . . . [for] evaluation of known or suspected abdominal masses” and “[a] CT scan of the pelvis will be considered medically necessary and reasonable . . . [for] evaluation of cysts, tumors, or masses of the pelvic structure.”  Based on the Aggrieved Party’s arguments and supporting evidence, I encourage the Medicare contractor to consider whether evidence of “malignant desmoid fibromatosis status post resection” that has been determined by a physician to require “surveillance” satisfies the provisions of L34415 regarding the medical necessity for a CT scan of the abdomen and pelvis.

If the Aggrieved Party has additional information or arguments she wishes to submit as part of a request for redetermination, she may do so by following the instructions on page 6 of the Medicare contractor’s initial notice, dated June 30, 2023.  See AP Ex. 3.  I emphasize that the notice informed the Aggrieved Party that an appeal must be filed no later than September 4, 2023.²

In summary, the Aggrieved Party neither filed an acceptable complaint nor submitted an acceptable amended complaint.  Therefore, I dismiss the complaint pursuant to 42 C.F.R. § 426.410(c)(2).  It appears that the basis for the Aggrieved Party’s challenge is that Palmetto GBA incorrectly applied L34415, and such a matter is outside of my jurisdiction because I may only review the reasonableness of an LCD provision or provisions rather than whether the contractor correctly applied an LCD provision or provisions.  See 42 C.F.R. § 426.455(b).  Contemporaneous to the issuance of this decision dismissing the complaint, a copy of this decision and the Aggrieved Party’s submissions will be forwarded to Palmetto GBA for consideration as a request for redetermination.

Endnotes

¹  Findings of fact and conclusions of law are in italics and bold font.

²  With a goal of ensuring that the Aggrieved Party has sufficient notice and opportunity to submit evidence and arguments in support of a redetermination request, the Civil Remedies Division expedited issuance of this decision dismissing the unacceptable complaint.