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When Emily Back was dying in early 2008, her treating physician prescribed a medication to help relieve her excruciating pain.  After the hospice provider refused to furnish the medication, her husband, in desperation, purchased it from the pharmacy, spending almost $6,000 of their own funds.  Mr. Back thought there must be some way to appeal the hospice’s denial of the drug, but he hit a wall at every turn, even with assistance from the Center for Medicare Advocacy.  Now, after nearly eight years, he has finally received a Medicare decision saying that the drug should have been covered.  His experience has nonetheless convinced him that “there is no working appeals process for Medicare hospice claims.”

The hospice provider told Mr. Back that he needed to file a claim with the Medicare contractor.  However, each time he tried to do so, the contractor repeatedly insisted that it could not process his claim without court documents naming him as the executor of his wife’s estate.  This should not have been an impediment to bringing a claim.  Many Medicare beneficiaries like Emily Back die without an estate, and therefore, without needing a court to appoint an executor.  By regulation, a person like Mr. Back who purchases healthcare items and services for a beneficiary is entitled to file a claim for Medicare payment on his own behalf.

Ultimately, though, Mr. Back’s claim never proceeded because the Centers for Medicare & Medicaid Services (CMS) informed him that only the hospice could submit a claim after furnishing the service or item.  At that point, Mr. Back sued the Secretary of the Department of Health and Human Services alleging that there was no administrative process for him to challenge the hospice provider’s refusal to furnish a necessary drug.  Ironically, the district court refused to assume jurisdiction over the suit on the grounds that Mr. Back had not exhausted his administrative remedies.

When Mr. Back next appealed to the United States Court of Appeals for the Ninth Circuit, the Secretary professed for the very first time that a hospice appeals process did exist, but that Mr. Back had not been given correct information about how to access it.  Accepting the Secretary’s allegation as true, the Court declared the case moot and advised Mr. Back to avail himself of the purported procedure.

At this point, four years had passed.  Mr. Back embarked again, this time utilizing Form 1490S, which the government mentioned was the correct approach to appeals.  The curious thing about Form 1490S is that it is a Medicare Part B claims form, whereas hospice care is a Medicare Part A benefit.  For over another year, Mr. Back encountered the same problem; the contractor repeatedly refused to process his claim for reimbursement without proof that he was the executor of his wife’s estate. 

When the contractor finally issued a decision denying coverage, it incorrectly analyzed the claim as one for drug coverage under Part B.  This is not surprising, since the appeal was filed on a Part B form and went to a Part B contractor.  Hospice was not even mentioned in the decision.  Mr. Back raised this point at the next two levels of review, but each decision-maker proceeded to analyze the claim under Part B standards – standards that do not apply to hospice coverage.  It was not until October 2015 that he received a decision from the Medicare Appeals Council (“MAC”) reflecting a proper understanding that his wife had been certified as terminally ill, had elected the hospice benefit, and was entitled to receive medication necessary for the palliation or management of her terminal illness and related conditions.

Mr. Back, who was 80 years old when his wife Emily died, is now 88.  He does not consider his MAC decision a victory.  His Kafkaesque experience confirms that the current mechanism for appealing a hospice denial is fundamentally flawed and in need of reform.  By his assessment, “Emily and I were fortunate in that we had the funds to go outside the system for the prescriptions….  many others would not be able to.”

When Medicare patients elect to receive hospice care, the law requires that “virtually all” care related to their terminal illness be furnished through or by the designated hospice provider.  This fact underscores the need for a contemporaneous appeals process that allows patients to request an expedited (within 24 – 48 hours) review and an appealable written decision whenever hospice providers refuse necessary care or are not providing enough care.  Mr. Back continues his pursuit to make this process a reality for hospice patients and their loved ones, and hopes that it may one day be known as an “Emily Appeal”.

For a timeline of the Back appeal, see

The Center is interested in hearing from Medicare beneficiaries or their loved ones who have experienced problems in appealing the denial of items or services by a hospice agency.  Please contact us at

November 18, 2015 – W. Kwok

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