Back v. Sebelius

A case must be dismissed as moot when no controversy exists because the agency already has in place the administrative appeals process that the plaintiff seeks.

Howard Back’s terminally-ill wife was receiving palliative treatment while she was in hospice care, which she received from an approved Medicare provider, Visiting Nurse Association (“VNA”). Mrs. Back’s attending physician prescribed a pain medicine that VNA refused to provide, despite the failure of VNA’s drugs to control Mrs. Back’s constant pain. Mr. Back ultimately paid $5,940 for the medicine up until Mrs Back’s death. Upon Mr. Back’s request to VNA for reimbursement, VNA refused to pay despite Mr. Back’s explanation that the drug was part of his wife’s care plan, which the hospice’s interdisciplinary team had approved. The Center for Medicare & Medicaid Services (“CMS”) responded to Mr. Back’s stated intent of appealing VNA’s denial of reimbursement with multiple rounds of misinformation, and with a final response that the hospice provider needed to file the appeal instead of Back. In district court, Mr. Back alleged a Fifth Amendment Due Process claim and claimed that the Secretary violated her duties under the Medicare Act by not having an administrative process available for hospice beneficiaries to challenge a hospice provider’s actions. Back sought declaratory relief and a permanent injunction to force the Secretary to offer an administrative appeals process. The Secretary moved for judgment on the pleadings, arguing that despite her own agency’s statements, hospice beneficiaries could appeal within the agency’s current system, so the case was moot. The Secretary’s alternative argument was that Mr. Back had not exhausted his administrative remedies, the basis upon which the district court granted the Secretary’s motion. The Ninth Circuit found that no controversy existed, because the Secretary essentially granted everything that Mr. Back requested. VACATED and REMANDED, to be DISMISSED as moot. Costs awarded to Back.