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No. 09-1706 (C.D.Cal.), filed September 8, 2009.  Appeal filed January 28, 2011 (No. 11-55175, 9th Cir.)

Issue: Whether the absence of an administrative appeals process for the denial of services by a hospice violates the Medicare statute and the Due Process Clause.

Relief Sought: Declaratory and injunctive relief requiring an administrative appeals process.

Updated: October 22, 2013

Status: After the complaint was filed, the parties attempted to settle the case with the assistance of a magistrate judge acting as a mediator, but the Secretary would only offer that an allegedly existing administrative process, with no expedited review and otherwise inadequate in the circumstances, should be available. Defendant then moved for judgment on the pleadings, arguing both that the district court lacked jurisdiction because plaintiff had failed to exhaust (despite having attempted on several occasions to challenge the hospice's failure to provide the required medication) and that plaintiff could not state a claim.

On January 4, 2011, after full briefing and argument, the district judge granted the defendant's motion for judgment on the pleadings.  She concluded that plaintiff had not met any of the three factors relevant to waiver of exhaustion of administrative remedies, and that therefore the court lacked jurisdiction.  Plaintiff appealed, and after full briefing and oral argument, a Ninth Circuit panel issued a decision on July 5, 2012.  684 F.3d 929.

The Court held that the case was moot and did not reach the exhaustion issue on which the district court had based its decision.  The appellate court stated that the process of administrative review sought by the plaintiff aleady existed and that the plaintiff had been offered the opportunity to utilize that process.  The Court could find no indication that the existing regulations on the review process were not applicable to hospice beneficiaries seeking to challenge the denial of services.  The Court added, however, that it "expect[ed] that the Secretary will take action to ensure her agencies are properly informed in the future."
Plaintiff filed a petition for panel rehearing on August 10, 2012, but that request was denied on September 26, 2012.  Plaintiff did not petition for Supreme Court review, so the case is at an end.

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