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Howard Back v. Kathleen Sebelius

July 5, 2012

HOWARD BACK, PLAINTIFF-APPELLANT,
v.
KATHLEEN SEBELIUS, SECRETARY, U.S. DEPARTMENT OF HEALTH SERVICES, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding D.C. No. 5:09-cv-01706-VAP-DTB

The opinion of the court was delivered by: Fisher, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted May 9, 2012-Pasadena, California

Before: John T. Noonan, Jr., and Raymond C. Fisher, Circuit Judges, and James E. Gritzner, District Judge.*fn1

Opinion by Judge Fisher

OPINION

The Medicare Act sets forth a federally funded health insurance program for the aged and disabled that includes hospice care designed to provide terminally ill patients with palliative care. Howard Back brought this suit alleging that Secretary of Health and Human Services Kathleen Sebelius violated her duties under the Medicare Act and the Fifth Amendment Due Process Clause by failing to provide an administrative process for beneficiaries of hospice care to appeal a hospice provider's refusal to provide a drug prescribed by their attending physician. Although the government led Back to believe there was no appeal process, in fact and as admitted by the Secretary after Back filed his complaint, such a process does exist. Accordingly, we hold that no controversy now exists and dismiss the appeal as moot.

I.

Part A of the Medicare Act provides coverage for hospice care, including nursing care, physical or occupational therapy, medical supplies (including drugs), physicians' services, short term inpatient care and counseling. See 42 U.S.C. §§ 1395d(a)(4), 1395x(dd)(1). An individual who elects to receive these benefits waives his right to have Medicare payments made for treatment of his underlying terminal illness by someone other than the individual's attending physician or the designated hospice program. See id. § 1395d(d)(2)(A). The hospice benefit covers only "expenses incurred for items or services . . . reasonable and necessary for the palliation or management of terminal illness." Id. § 1395y(a). Medicare pays hospice providers on a per diem basis that depends on the intensity of the care provided and the geographic location of the patient. See id. § 1395f(i); 42 C.F.R. § 418.302.

In 2007, Howard Back's wife was diagnosed as terminally ill. At the time of the diagnosis, she was enrolled in Medicare and elected to receive hospice services from the Visiting Nurse Association (VNA), a hospice provider covered by Medicare. While at VNA, Mrs. Back suffered constant pain that could not be controlled by the pain medications that VNA supplied. In February 2008, her attending physician prescribed another medication, called Actiq, but VNA refused to provide her with the drug. Back therefore paid $5940 for his wife's prescriptions for Actiq out of his own pocket until Mrs. Back died in March 2008.

In September 2008, Back submitted the Actiq bills to VNA for reimbursement, but VNA declined to pay. In November 2008, Back wrote to VNA, stating that Actiq was part of his wife's care plan that had been signed by the hospice's interdisciplinary team. He also announced his intention to file a formal appeal with Medicare. VNA erroneously informed Back that he should file his appeal with National Government Services (NGS).

Back then wrote to NGS stating his intent to appeal. The Center for Medicare & Medicaid Services (CMS), the federal agency charged with administering Medicare, responded that only the legal representative of Mrs. Back's estate could file an appeal, and requested documents naming him as the personal representative of the estate. Back sent the requested documentation to CMS, which ignored the documents and again requested proof that Back was the legal representative of Mrs. Back's estate. Back then hired an attorney, who wrote CMS setting forth several legal bases on which Back was entitled to file an appeal. CMS responded that any appeal had to be filed by the hospice provider, not Back.

In September 2009, Back filed this suit against the Secretary. He alleged that the Secretary violated her duties under the Medicare Act and the Fifth Amendment Due Process Clause by not providing an administrative process for a hospice beneficiary to appeal a hospice provider's refusal to provide a drug. Back requested declaratory judgment and a permanent injunction requiring the Secretary to ...


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