2006.09.19 CR1510, In re CMS LCD Complaint: Blood Glucose Testing (LCD Database ID No. L19657) Contractor: Mutual of Omaha Insurance Company (Fiscal Intermediary). Region VII, Midwest Consortium

On June 28, 2006, the complainant requested through his representative that the local coverage determination (LCD) titled “Blood Glucose Testing,” LCD Database I.D. No. L19657, issued by the Medicare Fiscal Intermediary, Mutual of Omaha Insurance Company, be reviewed. The case was assigned to me for further proceedings on August 3, 2006.

Mutual of Omaha advised me by letter dated August 11, 2006, attached, that the challenged LCD has been retired effective August 11, 2006.

Pursuant to 42 C.F.R. § 426.444(b)(6), an administrative law judge (ALJ) must dismiss a LCD complaint concerning LCD provisions if the contractor notifies the ALJ that the LCD provisions are no longer in effect. Pursuant to 42 C.F.R. § 426.420(a) a contractor may retire an LCD subject to my jurisdiction at anytime before I issue a decision. The regulation provides that retirement of an LCD under review has the same effect as a decision finding the LCD invalid under the reasonableness standard as described under 42 C.F.R. § 426.260(b), i.e., an aggrieved party’s denied claim, if any, is to be newly adjudicated by the contractor without application of the retired LCD. The regulations provide that if I receive notice that an LCD was retired before I issue a decision, I must dismiss the complaint and inform the aggrieved party that individual claim review will be done by the contractor without application of the retired LCD. 42 C.F.R. § 426.420(e)(1). The regulations grant me no discretion as to what must be done when an LCD is retired as it has been in this case. The fact that a contractor invalidates, withdraws, retires, or otherwise renders the offending LCD provisions ineffective, effectively deprives me of jurisdiction to continue. See 42 C.F.R. § 426.405(d)(4).

III. Conclusion

Accordingly, the complaint must be dismissed. The aggrieved party is advised in accordance with 42 C.F.R. § 426.420(e)(1), that in accordance with 42 C.F.R. § 426.260(b)(1) the contractor is required to comply with the requirements of that provision with regard to claim readjudication.

CASE \| DECISION \| JUDGE
Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division
IN THE CASE OF
SUBJECT: In re CMS LCD Complaint: Blood Glucose Testing (LCD Database ID No. L19657) Contractor: Mutual of Omaha Insurance Company (Fiscal Intermediary). Region VII, Midwest Consortium	DATE: September 19, 2006

	Docket No. C-06-553 Decision No. CR1510
DECISION	...TO TOP
DECISION The complaint is dismissed pursuant to 42 C.F.R. § 426.444(b)(6). I. Background On June 28, 2006, the complainant requested through his representative that the local coverage determination (LCD) titled “Blood Glucose Testing,” LCD Database I.D. No. L19657, issued by the Medicare Fiscal Intermediary, Mutual of Omaha Insurance Company, be reviewed. The case was assigned to me for further proceedings on August 3, 2006. Mutual of Omaha advised me by letter dated August 11, 2006, attached, that the challenged LCD has been retired effective August 11, 2006. II. Discussion Pursuant to 42 C.F.R. § 426.444(b)(6), an administrative law judge (ALJ) must dismiss a LCD complaint concerning LCD provisions if the contractor notifies the ALJ that the LCD provisions are no longer in effect. Pursuant to 42 C.F.R. § 426.420(a) a contractor may retire an LCD subject to my jurisdiction at anytime before I issue a decision. The regulation provides that retirement of an LCD under review has the same effect as a decision finding the LCD invalid under the reasonableness standard as described under 42 C.F.R. § 426.260(b), i.e., an aggrieved party’s denied claim, if any, is to be newly adjudicated by the contractor without application of the retired LCD. The regulations provide that if I receive notice that an LCD was retired before I issue a decision, I must dismiss the complaint and inform the aggrieved party that individual claim review will be done by the contractor without application of the retired LCD. 42 C.F.R. § 426.420(e)(1). The regulations grant me no discretion as to what must be done when an LCD is retired as it has been in this case. The fact that a contractor invalidates, withdraws, retires, or otherwise renders the offending LCD provisions ineffective, effectively deprives me of jurisdiction to continue. See 42 C.F.R. § 426.405(d)(4). III. Conclusion Accordingly, the complaint must be dismissed. The aggrieved party is advised in accordance with 42 C.F.R. § 426.420(e)(1), that in accordance with 42 C.F.R. § 426.260(b)(1) the contractor is required to comply with the requirements of that provision with regard to claim readjudication.
JUDGE	...TO TOP
Keith W. Sickendick Administrative Law Judge
CASE \| DECISION \| JUDGE