Howard Back v. Kathleen Sebelius

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…