Back v. Sebelius

Howard Back’s (plaintiff) wife, a Medicare enrollee, elected to receive palliative care from the Visiting Nurse Association (VNA), a Medicare-eligible hospice, following a terminal diagnosis. Mrs. Back’s original treatment protocol did not manage her pain; therefore, Mrs. Back’s treating physician prescribed a different medication, Actiq. VNA refused to provide Actiq for Mrs. Back, forcing Howard to pay nearly $6,000 out-of-pocket to obtain Actiq for Mrs. Back. After Mrs. Back’s death, Howard submitted the Actiq bills to VNA for reimbursement. VNA refused to reimburse Howard. When Howard stated his intent to file a formal Medicare appeal, VNA mistakenly directed Howard to file his appeal with a Medicare fiscal intermediary that handled provider claims, not beneficiary claims. The intermediary responded to Howard’s notice of intent to appeal by telling Howard that any appeal needed to be filed by VNA as the hospice provider. Howard then sued the secretary of the Department of Health and Human Services, Kathleen Sebelius (defendant), in federal district court, seeking a declaratory judgment that the secretary must provide an administrative appeals process by which hospice beneficiaries can appeal a hospice provider’s refusal to provide medical treatment, services, or pharmaceuticals. The secretary moved to dismiss Howard’s suit as moot, arguing that the requested administrative appeals process already existed. The district court dismissed Howard’s claim, holding that it lacked subject-matter jurisdiction because Howard had not yet exhausted his administrative remedies. Howard appealed.