## Facts

- Howard Back’s wife, a Medicare beneficiary, elected Medicare Part A hospice benefits through a Medicare-certified hospice provider.
- Mrs. Back suffered persistent pain; her physician prescribed Actiq (a fentanyl-based medication) for pain management.
- The hospice provider refused to furnish the prescribed drug, and Back paid nearly $6,000 out of pocket.
- After Mrs. Back’s death, Back sought reimbursement from the hospice provider, which refused.
- When Back attempted to pursue a Medicare appeal, he was directed to an entity that indicated an appeal would have to be filed by the hospice provider, leading Back to believe hospice beneficiaries lacked a direct administrative appeal route for this type of denial.
- Back sued the Secretary of Health and Human Services seeking declaratory and injunctive relief requiring an administrative appeals process for hospice beneficiaries challenging a provider’s refusal to supply prescribed drugs.
- During the litigation, the Secretary acknowledged that an administrative appeals process for hospice beneficiaries in this context already exists.

## Issues

1. Whether the request for declaratory and injunctive relief requiring the Secretary to provide an administrative appeals process became moot once the Secretary conceded such a process already exists.
2. If not moot, whether the action was barred for failure to exhaust administrative remedies under the Medicare Act.

## Decision

- The Ninth Circuit dismissed the appeal as moot for lack of a live Article III case or controversy.
- Because the Secretary conceded the existence of an administrative appeals process for hospice beneficiaries, the court could not grant effective prospective relief matching Back’s requested remedy.
- The court did not reach the merits of the district court’s dismissal based on Medicare Act exhaustion and jurisdictional channeling.

## Legal Principles

- Federal courts require a live case or controversy at all stages of review; when events eliminate the possibility of effective relief, the claim is moot.
- A court may not issue declaratory or injunctive relief that would be advisory or redundant where the challenged legal deficiency is no longer asserted to exist.
- When mootness is dispositive, appellate courts need not decide alternative jurisdictional or statutory questions, including administrative exhaustion under the Medicare Act.

## Conclusion

The Ninth Circuit dismissed Back’s appeal as moot because HHS conceded that hospice beneficiaries already have an administrative mechanism to appeal a hospice provider’s refusal to provide a prescribed drug, eliminating any effective prospective relief on the claim as framed.


Back v. Sebelius, 684 F.3d 929 (9th Cir. 2012)