Howard Back v. Kathleen Sebelius, et al

Filing

FILED OPINION (JOHN T. NOONAN, RAYMOND C. FISHER and JAMES E. GRITZNER) DISMISSED. Judge: RCF Authoring. We vacate the district court s judgment, remand and instruct the court to dismiss the case as moot. Costs on appeal are awarded to Back. FILED AND ENTERED JUDGMENT. [8237585]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



HOWARD BACK,
Plaintiff-Appellant,
v.
KATHLEEN SEBELIUS, Secretary,
U.S. Department of Health
Services,
Defendant-Appellee.




No. 11-55175
D.C. No.
5:09-cv-01706VAP-DTB
OPINION

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
May 9, 2012—Pasadena, California
Filed July 5, 2012
Before: John T. Noonan, Jr., and Raymond C. Fisher,
Circuit Judges, and James E. Gritzner, District Judge.*
Opinion by Judge Fisher

*The Honorable James E. Gritzner, Chief United States District Judge
for the Southern District of Iowa, sitting by designation.

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COUNSEL
Sally Hart, Center for Medicare Advocacy, Inc., Tucson, Arizona; Gill Deford (argued), Center for Medicare Advocacy,
Inc., Willimantic, Connecticut; Richard A. Rothschild and
Antionette Dozier, Western Center on Law and Poverty, Los
Angeles, California, for the plaintiff-appellant.
Tony West, Assistant Attorney General; André Birotte, Jr.,
United States Attorney; Michael S. Raab and Stephanie R.
Marcus (argued), Attorneys, Appellate Staff, Civil Division,
U.S. Department of Justice, Washington, D.C., for the
defendant-appellee.

OPINION
FISHER, Circuit Judge:
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

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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

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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 provide an
administrative appeals process. He also asked the court to
fashion an administrative process.
The Secretary moved for judgment on the pleadings. She
stated that, contrary to CMS’s representations, a hospice beneficiary may file an appeal under existing procedures. Thus,
the Secretary argued, Back’s suit was moot. In the alternative,
she argued that the court lacked jurisdiction to hear Back’s
claim because he had not exhausted his administrative remedies. The district court granted the Secretary’s motion based
on the exhaustion ground. Back timely appealed.

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II.
[1] “[A]s a prerequisite to our exercise of jurisdiction, we
must satisfy ourselves that a case is not moot.” Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933, 936 (9th Cir.
2012). “To qualify as a case fit for federal-court adjudication,
‘an actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed.’ ” Id. (quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997)). “An appeal is moot if no present controversy exists
as to which an appellate court can grant effective relief.” Id.
[2] Back’s only allegation is that the Secretary violated her
duties by failing to create a process for hospice beneficiaries
to appeal a hospice provider’s refusal to provide a particular
drug. He bases this allegation on the letter he received from
CMS stating that his hospice provider must file the administrative appeal. He seeks only declaratory judgment and
injunctive relief to remedy the alleged failure. However, the
relief Back seeks — an administrative appeals process open
to hospice beneficiaries — already exists. The Secretary has
confirmed this through her judicial admission to that effect,
repudiating the erroneous representations of CMS to the contrary.1
The Medicare Act provides:
1

Specifically, the Secretary has admitted that Back “was mistakenly
given the name of a fiscal intermediary that handles provider claims, not
beneficiary claims, by his hospice provider, and that an employee of the
intermediary with whom he spoke provided inaccurate information.” The
Secretary has further admitted that hospice beneficiaries may pursue the
administrative appeals process described above and that Back could have
done so by “fil[ing] a claim on a CMS-1490S with Palmetto GBA, the
Medicare Administrative Contractor for [Back] and other California residents. [Back] will then receive an initial determination from the MAC. If
dissatisfied, [he] may appeal via the process under 42 U.S.C. § 1395ff and
42 C.F.R. part 405, subpart I.”

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The Secretary shall promulgate regulations and make
initial determinations with respect to benefits under
part A of this subchapter [which includes hospice
benefits] . . . in accordance with those regulations for
the following:
(A) The initial determination of whether an individual is entitled to benefits under such parts.
(B) The initial determination of the amount of benefits available to the individual under such parts.
(C) Any other initial determination with respect to a
claim for benefits under such parts, including an initial determination by the Secretary that payment may
not be made, or may no longer be made, for an item
or service under such parts . . . .
42 U.S.C. § 1395ff(a)(1). The Act further provides that any
individual dissatisfied with his or her initial determination
shall be entitled to reconsideration of the determination, a
hearing by the Secretary and, after such hearing, judicial
review of the Secretary’s final decision. See id.
§ 1395ff(b)(1)(A).
[3] Consistent with these mandates, the Secretary has promulgated regulations that provide an administrative process
for Part A beneficiaries who are refused a benefit from their
Medicare provider. See 42 C.F.R. ch. IV, subch. B, pt. 405,
subpt. I. The regulations authorize a beneficiary to submit a
claim to the appropriate Medicare contractor to make an initial determination as to whether “items and/or services furnished are covered under title XVIII [i.e. Medicare].” Id.
§ 405.924(b); see also id. § 405.906(a) (recognizing a beneficiary as party to the initial determination).2 “After a claim is
2

The regulations define “beneficiary” to include “an individual who is
enrolled to receive benefits under Medicare Part A.” 42 C.F.R. § 405.902.

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filed with the appropriate contractor . . . the contractor must
. . . [d]etermine if the items and services furnished are covered
or otherwise reimbursable” and “[d]etermine any amounts
payable and make payment accordingly.” Id. § 405.920. A
beneficiary “that is dissatisfied with an initial determination
may request a redetermination by a contractor.” Id. § 405.940;
see also id. §§ 405.940-.958 (setting forth the process for a
redetermination), followed by reconsideration of the redetermination, see id. §§ 405.960-.978, an ALJ hearing, see id.
§§ 405.1000-.1054, and review by the Medicare Appeals
Council, id. §§ 405.1100-.1140; see also id. § 405.906(b)
(providing that a party to an initial determination may be
party to a redetermination, reconsideration, ALJ hearing and
Appeals Council review). Finally, the beneficiary may seek
judicial review. See id. § 405.1136.
[4] The Secretary has judicially admitted that hospice beneficiaries may pursue claims for reimbursement under this
process if a hospice provider refuses to pay for drugs or services sought by the beneficiary. We find nothing in the regulations that would preclude hospice beneficiaries from doing
so.3 We have no reason to believe the Secretary or her agents
3

Despite the Secretary’s admission, Back insists that beneficiaries may
not file an appeal under the Secretary’s procedure. He contends that,
although the Secretary’s regulations may cover hospice beneficiaries, the
Medicare Claims Processing Manual (MCPM) excludes hospice beneficiaries from pursuing an administrative appeal. He has not identified any language in the MCPM that supports his argument. On the contrary, the
MCPM appears to be consistent with the Secretary’s regulations. See
MCPM, ch. 29, § 200(B) (June 11, 2010) (quoting verbatim 42 C.F.R.
§ 405.924(b)’s requirement that a Medicare contractor “make[ ] initial
determinations regarding claims for benefits under Medicare Part A,”
including whether “the items and/or services furnished are covered under
title XVIII”), available at http://www.cms.gov/Regulations-and-Guidance/
Guidance/Manuals/downloads/clm104c29.pdf (last visited June 13, 2012);
id. § 110 (stating that beneficiaries are parties to an initial determination);
id. §§ 210, 220 (stating that a beneficiary may appeal an initial determination and describing the entire appeals process set forth by the Secretary’s
regulations).

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will disavow or disregard the established regulatory process
in the future.4 Because the Secretary has already created the
administrative appeals process that Back seeks, “no present
controversy exists as to which [we] can grant effective relief.”
Vegas Diamond Props., LLC, 669 F.3d at 936; see also
Spencer-Lugo v. INS, 548 F.2d 870, 870-71 (9th Cir. 1977)
(per curiam) (holding that a case was moot where the INS
offered the petitioners exactly what they asked for); 13B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3533.2 (3d ed. 2008) (“Even
when one party wishes to persist to judgment, an offer to
accord all of the relief demanded may moot the case. . . .
Action by the defendant that simply accords all the relief
demanded by the plaintiff may have the same effect as settlement or an offer of settlement. So long as nothing further
would be ordered by the court, there is no point in proceeding
to decide the merits.”). The appeal is therefore moot.5
Because no controversy exists, we do not reach the question of whether we lack jurisdiction to consider Back’s claim
under the Medicare Act because of his failure to exhaust
administrative remedies.
4

We do not believe this case raises concerns of voluntary cessation.
Since her initial response to this lawsuit, the Secretary has explained that
CMS’s letter was mistaken and that hospice beneficiaries may file an
administrative appeal under the regulations discussed in text. We have no
expectation that the Secretary will in the future seek to repudiate that position. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000); see also Thalheimer v. City of San Diego, 645
F.3d 1109, 1126 (9th Cir. 2011) (noting that concerns of voluntary cessation are of particular force in a case in which the voluntary cessation
occurred only in response to the district court’s judgment).
5
We note that the Secretary has stated that she will waive the timeliness
requirement for filing an administrative appeal in this instance to permit
Back to pursue an administrative remedy under the process described
above.

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III.
We understand Back’s frustration, having been misinformed by CMS and forced to hire an attorney and bring suit
to be properly informed of his right to appeal. As this opinion
makes clear, however, Back already has the only relief he
seeks — he and other hospice beneficiaries may utilize the
Secretary’s procedures to appeal a hospice provider’s refusal
to provide a drug or service. We expect that the Secretary will
take action to ensure that her agencies are properly informed
in the future.
[5] We vacate the district court’s judgment, remand and
instruct the court to dismiss the case as moot. Costs on appeal
are awarded to Back.
DISMISSED AS MOOT.