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  • February 2008.  Pain prescription ordered by Emily Back’s physician under her hospice plan of care.  Medicare-certified hospice refuses to furnish the medication.  Howard Back purchases prescription at pharmacy.
  • March 2008.  Emily Back dies.
  • September 2008 – April 2009.  Howard Back makes numerous unsuccessful attempts to appeal the hospice’s denial of the medication and to submit claims for reimbursement.
  • April 2009.  CMS issues letter to Back stating that he cannot file a claim for coverage, only a provider can file a claim for coverage. 
  • September 2009.  Back files suit against the Secretary of the U.S. Department of Health & Human Services in U. S. District Court in California, Back v. Sebelius, ED-CV-09-01706, challenging the lack of a hospice appeals process on statutory and Constitutional grounds.
  • January 2011.  District Court dismisses Back’s case for failure to exhaust administrative remedies, although the crux of Back’s claim is that there is no administrative remedy.
  • July 2012.  On appeal to the U.S. Circuit Court of Appeals, the Secretary asserts for the first time that there is a designated claim form (CMS-Form 1490S) and administrative process for beneficiaries to appeal hospice denials.  Accepting this allegation, the Court declares the case moot.  Back v. Sebelius, 684 F.3d 929 (9th Cir. 2012).
  • November 2012 – December 2013.  Back submits his claim using Form 1490S, but the claim is denied based on the wrong standards.  He is repeatedly informed by Medicare contractors that he cannot appeal this denial.
  • January 2014 – March 2015.  Back receives a redetermination decision, a reconsideration decision, and then an administrative law judge decision upholding the denial of coverage based on the wrong standards.
  • October 2015.  The Medicare Appeals Council (“MAC”) issues a decision correctly analyzing the claim under hospice rules and holds that the medication should have been furnished and covered under the Medicare hospice benefit.  See decision (attached).

Mr. Back was assisted by attorneys at the Los Angeles-based Western Center on Law and Poverty and the Washington D.C.-based Center for Medicare Advocacy.

If you have questions, need more information, or wish to discuss this in greater detail with Ms. Stein or Mr. Back, please contact:  Wey-Wey Kwok (Center for Medicare Advocacy) at WKwok@medicareadvocacy.org.  You can also contact Richard Rothschild (Western Center on Law and Poverty) at RRothschild@wclp.org.

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