§ 426.410 Docketing and evaluating the acceptability of LCD complaints. ( a ) *Docketing the complaint.* The office designated by CMS does the following upon receiving a complaint regarding an LCD: ( 1 ) Dockets the complaint.
( 2 ) Determines whether the complaint is— ( i ) The first challenge to a particular LCD; or
( ii ) Related to a pending LCD review.
( 3 ) Forwards the complaint to the ALJ that conducts the review. In cases related to pending reviews, the complaint generally is forwarded to the ALJ who is conducting the review.
( b ) *Evaluating the acceptability of the complaint.* The ALJ assigned to the LCD review determines if the complaint is acceptable by confirming all of the following: ( 1 ) The complaint is being submitted by an aggrieved party or, in the case of a joint complaint, that each individual named in the joint complaint is an aggrieved party. (In determining if a complaint is acceptable, the ALJ assumes that the facts alleged by the treating physician's documentation regarding the aggrieved party's (or parties') clinical condition are true.)
( 2 ) The complaint meets the requirements for a valid complaint in § 426.400 and does not challenge one of the documents in § 426.325(b).
( c ) *Unacceptable complaint.* ( 1 ) If the ALJ determines that the complaint is unacceptable, the ALJ must provide the aggrieved party (or parties) one opportunity to amend the unacceptable complaint.
( 2 ) If the aggrieved party (or parties) fail(s) 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.
( 3 ) If a complaint is determined unacceptable after one amendment, the beneficiary is precluded from filing again for 6 months after being informed that it is unacceptable.
( d ) *Acceptable complaint.* If the ALJ determines that the complaint (or amended complaint) is acceptable, the ALJ does the following: ( 1 ) Sends a letter to the aggrieved party (or parties) acknowledging the complaint and informing the aggrieved party (or parties) of the docket number and the deadline for the contractor to produce the LCD record.
( 2 ) Forwards a copy of the complaint, any evidence submitted in the complaint, and the letter described in paragraph (d)(1) of this section to the applicable contractor and CMS.
( 3 ) Requires CMS or the contractor to send a copy of the LCD record to the ALJ and all parties to the LCD review within 30 days of receiving the ALJ's letter, the copy of the complaint, and any associated evidence, subject to extension for good cause shown.
( e ) *Consolidation of complaints regarding an LCD* — ( 1 ) *Criteria for consolidation.* If a review is pending regarding a particular LCD provision(s) and no decision has been issued ending the review, and a new acceptable complaint is filed, the ALJ consolidates the complaints and conducts a consolidated LCD review if all of the following criteria are met: ( i ) The complaints are in regard to the same provision(s) of the same LCD or there are other bases for consolidating the complaints.
( ii ) The complaints contain common questions of law, common questions of fact, or both.
( iii ) Consolidating the complaints does not unduly delay the ALJ's decision.
( 2 ) *Decision to consolidate complaints.* If an ALJ decides to consolidate complaints, the ALJ does the following: ( i ) Provides notification that the LCD review is consolidated and informs all parties of the docket number of the consolidated review.
( ii ) Makes a single record of the proceeding.
( iii ) Considers the relevant evidence introduced in each LCD complaint as introduced in the consolidated review.
( 3 ) *Decision not to consolidate complaints.* If an ALJ decides not to consolidate complaints, the ALJ conducts separate LCD reviews for each complaint.
[68 FR 63716, Nov. 7, 2003; 68 FR 65346, Nov. 19, 2003]