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For Immediate Release
November 18, 2015
Contact: Maria Myotte,, 720 352 6153

Find the Department of Health and Human Services Departmental Appeal Board Decision of Medicare Appeals Council here:

In October, the Medicare Appeals Council (MAC), Medicare’s top appeal unit, reversed years of earlier decisions that thwarted an appeal of a hospice denial of a drug prescribed by an attending physician. In so doing, a Medicare beneficiary’s ‘right to review’ was explicitly recognized in this case, underscoring the need for a new appeal process for hospice patients to ensure that all will have that right.

The decision was the result of years of appeals brought by Howard Back on behalf of his now deceased wife, Emily Back.

In February 2008, terminally ill hospice patient Emily Back of Palm Desert, California, was suffering excruciating pain. Her attending physician prescribed a powerful pain killing medication (fentanyl “lollipops”); the hospice refused to provide the medication. Howard Back went to his local pharmacy with the prescription and paid for the drugs. Within a couple of hours, Emily was getting some pain relief. In the next month the Backs paid more than $5,000 for the fentanyl. Emily died on March 1, 2008.

Back assumed there would be some way to appeal the hospice denial, but he hit a brick wall at every turn. He wrote letters, filed forms, made phone calls and got nowhere. Then he filed suit against the Department of Health and Human Services asserting that there was no administrative process for him (or any other hospice patient) to appeal a hospice denial of a drug or service prescribed by the attending physician.   

Back had no success in the federal district court or on a later appeal to the U.S. Court of Appeals for the Ninth Circuit. When the Secretary asserted that there was an appeal process but that Back had not been properly informed about it, the appeals court declared the issue moot and dismissed the appeal. And Back started again, filling in forms, writing letters, restating his case. At each stage, the administrative decision-makers applied standards that did not relate to hospice coverage and ruled against Back. He appealed to the Medicare Appeals Council (MAC), Medicare’s top appeal unit.  

This October, the MAC overruled the earlier decisions. It held that the prescribed drug was necessary and that Back should be reimbursed for the moneys the family spent. For the first time in the two sets of the administrative processes, the right to review was explicitly recognized.

Attorney Judith Stein, of the non-profit Center for Medicare Advocacy, which assisted Back on this long journey, said: “Based on this decision, we hope top Medicare officials will finally agree that there is no meaningful administrative process for appeal of hospice denials of a prescribed drug or service. We are hopeful Medicare will quickly institute a fast-track appeal process for hospice patients. Dying patients don't have time to wait.”

Back himself noted that “our family was fortunate in being able to buy those expensive drugs, and we did so immediately. My big concern all these years has been the thousands of other hospice patients who are denied a prescribed item or service, and who are not able to pay for them.”

He added: “This has been like a maze – more than seven years of wandering – trying to find an exit. Now, with this MAC decision, I am hopeful that Medicare will quickly set up a fast turn-around process, and make sure that all hospice providers, physicians and hospice patients are told that they do have the right to appeal, and get a quick decision. The new process might even be known as an ‘Emily Appeal’.”

To speak with Howard Back or a spokesperson from the Center For Medicare Advocacy, please contact Maria Myotte at or 720-352-6153.


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The Center for Medicare Advocacy, Inc., established in 1986, is a national nonprofit, nonpartisan law organization that provides education, advocacy and legal assistance to help older people and people with disabilities obtain access to Medicare and necessary health care. We focus on the needs of Medicare beneficiaries, people with chronic conditions, and those in need of long-term care. The organization is involved in writing, education, and advocacy activities of importance to Medicare beneficiaries nationwide.

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