The complaint is dismissed pursuant to 42 C.F.R. § 426.444(b)(2) as it was not timely filed as required by 42 C.F.R.
§ 426.400(b)(2).

I. Background

Complainant requested by letter dated October 19, 2006, that an administrative law judge (ALJ) review the local coverage decision (LCD) entitled Pneumatic Compression Devices, LCD L11503, issued by the Medicare contractor TriCenturion. Complainant specifically challenged the provision of the LCD that required that she have six months of conservative therapy for venous stasis ulcers that failed, before her use of a pneumatic compression device, as prescribed by her physician, would be covered by Medicare.

The case was assigned to me for further proceedings on November 3, 2006.

II. Discussion

An LCD, as defined by the Social Security Act (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, section 1869(f)(2)(B) (42 U.S.C. § 1395ff(f)(2)(B)).

The Secretary promulgated regulations pursuant to sections 1102 and 1871 of the Act (42 U.S.C. §§ 1302 and 1395hh), implementing sections 1869(f)(1) and (f)(2) of the Act. 42 C.F.R. § 426.100. The regulations are found at 42 C.F.R. Part 426. The procedures for review of an LCD are in 42 C.F.R. Part 426, Subpart D (42 C.F.R. § 426.400 et. seq.). The Act and regulations provide for a two-level review process by the ALJ.

However, before any review of an LCD may be undertaken by an ALJ, the ALJ must determine the adequacy of the complaint and whether or not it was timely filed. 42 C.F.R. §§ 426.400 and 426.410. Although a complainant may be permitted one opportunity to correct some deficiencies in the content of a complaint pursuant to 42 C.F.R. § 426.410(c), an ALJ must dismiss an untimely complaint pursuant to 42 C.F.R. § 426.444(b)(2). Whether or not a complaint is timely is determined based upon the language of 42 C.F.R. § 426.400(b), which provides:

 (b) Timeliness of a complaint. An LCD complaint is not considered timely unless it is filed . . . within –

In this case, the Complainant’s letter challenging the LCD provision is dated October 19, 2006. Complainant indicates in her letter that she has been receiving the service and that her claim for the use of the pneumatic compression device was denied by the Centers for Medicare and Medicaid Services (CMS). Complainant attached several documents to her request for review including a copy of the initial denial from CMS dated February 22, 2006. It is clear that Complainant failed to file her challenge to the LCD provision within 120 days of the initial denial by CMS and I have no option but to dismiss the complaint.

III. Conclusion

For the foregoing reasons, the complaint is dismissed.