Howard Back v. Kathleen Sebelius
684 F.3d 929
9th Cir.2012Background
- Medicare Part A covers hospice care and related services; beneficiaries may elect hospice waivers for terminal illness treatment and are subject to per diem payments.
- Howard Back’s wife was terminally ill; in 2008 the attending physician prescribed Actiq, which VNA hospice refused to provide, and Back paid out-of-pocket.
- Back sought reimbursement; CMS and VNA misdirected him to an improper appeal path; CMS later acknowledged misdirection and that an appeal process exists for beneficiaries.
- Back filed suit in September 2009 alleging Secretary Sebelius failed to provide an administrative appeal process for drug refusals by hospice providers.
- The district court granted the Secretary’s motion on exhaustion grounds; Back appealed challenging mootness and the lack of an administrative process.
- The Ninth Circuit held there is no live controversy because an administrative appeals process exists and the Secretary admitted to it; the case was dismissed as moot and remanded with instruction to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case is moot | Back contends no mootness because no process existed. | Secretary argues existing CMS process renders case moot. | Moot; case dismissed as moot. |
| Whether Back may pursue an administrative appeal under the existing process | Back seeks declaratory relief to compel an appeal process for hospice beneficiaries. | Secretary admits an appeal process exists for beneficiaries; the issue is resolved. | Exists; process available to Back under regulations. |
| Whether the case should be dismissed for lack of exhausted administrative remedies | Back exhausted by pursuing remedies after misdirection. | Exhaustion not necessary where mootness defeats jurisdiction. | Irrelevant due to mootness; dismissal affirmed. |
| Whether the Secretary’s subsequent admissions affect jurisdiction or future conduct | Admissions show error and potential future repudiation. | Admissions moot the dispute and establish a remedy. | No live dispute; court will vacate and dismiss. |
Key Cases Cited
- Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933 (9th Cir. 2012) (mootness when relief sought has been provided)
- Spencer-Lugo v. INS, 548 F.2d 870 (9th Cir. 1977) (exact relief moots a case when provider grants relief)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (actual controversy must exist at all stages)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) (voluntary cessation considerations; ongoing agency position)
- Thalheimer v. City of San Diego, 645 F.3d 1109 (9th Cir. 2011) (voluntary cessation considerations in mootness)
- Spencer-Lugo v. INS, 548 F.2d 870 (9th Cir. 1977) (per curiam; mootness when relief granted)