Skip to main content


U.S. flag
      An official website of the United States government
              Here’s how you know
        Here’s how you knowDot gov**Official websites use .gov**
                 A **.gov** website belongs to an official government organization in the United States.
                  HTTPS**Secure .gov websites use HTTPS**
                 A **lock** (A locked padlock) or **https://** means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites. 
  Menu Close
          HHS Search block
    Search
        








  
  
    

  
      

                                      About HHS
    
                        
                              
      
      
      Programs & Services
    
                        
                              
      
      
      Grants & Contracts
    
                        
                              
      
      
      Laws & Regulations Breadcrumb
    Home
                              About
                              Agencies
                              DAB
                              Decisions
                              ALJ Decisions
                              2021
                              In re LCD Complaint:  Facet Joint Injections, Medial Branch Blocks, and Facet Joint Radiofrequency Neurotomy (Noridian Healthcare Solutions - L34993), DAB CR5876 (2021)
 Navigate to:
  Departmental Appeals Board (DAB)
    
                                                  
                                                    
            
      
      
      
      About DAB
                                            
            
            Organizational Overview
    
                                                  
                              
            
      
      
      
      Who are the Judges?
    
                                                  
                              
            
      
      
      
      DAB Divisions
    
                                                  
                              
            
      
      
      
      Contact DAB
    
                                                  
                                                    
            
      
      
      
      Filing an Appeal Online
                                            
            
            DAB E-File
    
                                                  
                              
            
      
      
      
      Medicare Operations Division (MOD) E-File
    
                                                  
                                                    
            
      
      
      
      Different Appeals at DAB
                                            
            
            Appeals to DAB Administrative Law Judges (ALJs)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Procedures
    
                                                                
                                                    
            
      
      
      
      Appeals to Board
                          
            
            Practice Manual
    
                                                  
                              
            
      
      
      
      Guidelines
    
                                                  
                              
            
      
      
      
      Regulations
    
                                                  
                              
            
      
      
      
      National Coverage Determination Complaints
    
                                                                
                                                    
            
      
      
      
      Appeals to the Medicare Appeals Council (Council)
                          
            
            Forms
    
                                                  
                              
            
      
      
      
      Fully Integrated Duals Advantage (FIDA) Demonstration Project
    
                                                  
                                                    
            
      
      
      
      Alternative Dispute Resolution Services
                                            
            
            Sharing Neutrals
    
                                                  
                              
            
      
      
      
      ADR Training
    
                                                  
                              
            
      
      
      
      Other ADR Services
    
                                                  
                                                    
            
      
      
      
      DAB Decisions
                                            
            
            Board Decisions
    
                                                  
                              
            
      
      
      
      DAB Administrative Law Judge (ALJ) Decisions
    
                                                  
                              
            
      
      
      
      Medicare Appeals Council (Council) Decisions
    
                                    
                              
            
      
      
      
      Stakeholder Feedback
    
                                                  
                                                    
            
      
      
      
      Careers
                                            
            
            Open Career Opportunities
    
                                                  
                              
            
      
      
      
      Internships & ExternshipsText resize icon

                    




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








  
  
    

  
      
Department of Health and Human Services 
    DEPARTMENTAL APPEALS BOARD
          Civil Remedies Division





*In re* LCD Complaint: Facet Joint Injections, Medial Branch Blocks, and Facet Joint Radiofrequency Neurotomy (Noridian Healthcare Solutions – L34993)
Docket No. C-21-610 Decision No. CR5876June 2, 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).1
  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.2
  The Beneficiary

**Page 2**

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).

**Page 3**

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).

**Page 4**

III.  Conclusion

For the foregoing reasons, the complaint is dismissed.


          /s/
        Keith W. Sickendick

                      Administrative Law Judge
      1. 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). back to note 1
                      2. 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). back to note 2 Back to top
    Contact HHS
    
                        
                                            
      
      
      Careers
    
                        
                                            
      
      
      HHS FAQs
    
                        
                                            
      
      
      Nondiscrimination NoticeHHS Archive
    
                        
                                            
      
      
      Accessibility Statement
    
                        
                                            
      
      
      Privacy Policy
    
                        
                                            
      
      
      Viewers & PlayersBudget/Performance
    
                        
                                            
      
      
      Inspector General
    
                        
                                            
      
      
      Web Site Disclaimers
    
                        
                                            
      
      
      EEO/No Fear ActFOIA
    
                        
                                            
      
      
      The White House
    
                        
                                            
      
      
      USA.gov
    
                        
                                            
      
      
      Vulnerability Disclosure Policy
        Sign Up for Email Updates

Receive the latest updates from the Secretary, Blogs, and News Releases.

Sign Up
  HHS Headquarters
          200 Independence Avenue, S.W.
                  Washington, D.C. 20201
                  Toll Free Call Center: 1-877-696-6775​ Disclaimer Policy: Links with this icon () mean that you are leaving the HHS website. The Department of Health and Human Services (HHS) cannot guarantee the accuracy of a non-federal website.
                  Linking to a non-federal website does not mean that HHS or its employees endorse the sponsors, information, or products presented on the website. HHS links outside of itself to provide you with further information.
                  You will be bound by the destination website's privacy policy and/or terms of service when you follow the link.
                  HHS is not responsible for Section 508 compliance (accessibility) on private websites. For more information on HHS's web notification policies, see Website Disclaimers.
 Continue
                  Go back