Back v. Sebelius
No. 09-1706 (C.D.Cal.), filed September 8, 2009. Appeal filed January 28, 2011 (No. 11-55175, 9th Cir.)
Last Update: October 22, 2013
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.
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.