FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOWARD BACK, 

Plaintiff-Appellant, No. 11-55175

v. D.C. No.  5:09-cv-01706- KATHLEEN SEBELIUS, Secretary,

VAP-DTB U.S. Department of Health

Services, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

May 9, 2012—Pasadena, California

Filed July 5, 2012

Before: John T. Noonan, Jr., and Raymond C. Fisher,

Circuit Judges, and James E. Gritzner, District Judge.*

Opinion by Judge Fisher

*The Honorable James E. Gritzner, Chief United States District Judge

for the Southern District of Iowa, sitting by designation. 

7861
COUNSEL

Sally Hart, Center for Medicare Advocacy, Inc., Tucson, Arizona; Gill Deford (argued), Center for Medicare Advocacy,

Inc., Willimantic, Connecticut; Richard A. Rothschild and

Antionette Dozier, Western Center on Law and Poverty, Los

Angeles, California, for the plaintiff-appellant. 

Tony West, Assistant Attorney General; André Birotte, Jr.,

United States Attorney; Michael S. Raab and Stephanie R.

Marcus (argued), Attorneys, Appellate Staff, Civil Division,

U.S. Department of Justice, Washington, D.C., for the

defendant-appellee.

OPINION

FISHER, Circuit Judge:

The Medicare Act sets forth a federally funded health

insurance program for the aged and disabled that includes

hospice care designed to provide terminally ill patients with

palliative care. Howard Back brought this suit alleging that

Secretary of Health and Human Services Kathleen Sebelius

violated her duties under the Medicare Act and the Fifth

Amendment Due Process Clause by failing to provide an

administrative process for beneficiaries of hospice care to

BACK v. SEBELIUS 7863
appeal a hospice provider’s refusal to provide a drug prescribed by their attending physician. Although the government led Back to believe there was no appeal process, in fact

and as admitted by the Secretary after Back filed his complaint, such a process does exist. Accordingly, we hold that no

controversy now exists and dismiss the appeal as moot.

I.

Part A of the Medicare Act provides coverage for hospice

care, including nursing care, physical or occupational therapy,

medical supplies (including drugs), physicians’ services, short

term inpatient care and counseling. See 42 U.S.C.

§§ 1395d(a)(4), 1395x(dd)(1). An individual who elects to

receive these benefits waives his right to have Medicare payments made for treatment of his underlying terminal illness by

someone other than the individual’s attending physician or the

designated hospice program. See id. § 1395d(d)(2)(A). The

hospice benefit covers only “expenses incurred for items or

services . . . reasonable and necessary for the palliation or

management of terminal illness.” Id. § 1395y(a). Medicare

pays hospice providers on a per diem basis that depends on

the intensity of the care provided and the geographic location

of the patient. See id. § 1395f(i); 42 C.F.R. § 418.302.

In 2007, Howard Back’s wife was diagnosed as terminally

ill. At the time of the diagnosis, she was enrolled in Medicare

and elected to receive hospice services from the Visiting

Nurse Association (VNA), a hospice provider covered by

Medicare. While at VNA, Mrs. Back suffered constant pain

that could not be controlled by the pain medications that VNA

supplied. In February 2008, her attending physician prescribed another medication, called Actiq, but VNA refused to

provide her with the drug. Back therefore paid $5940 for his

wife’s prescriptions for Actiq out of his own pocket until Mrs.

Back died in March 2008.

In September 2008, Back submitted the Actiq bills to VNA

for reimbursement, but VNA declined to pay. In November

7864 BACK v. SEBELIUS
2008, Back wrote to VNA, stating that Actiq was part of his

wife’s care plan that had been signed by the hospice’s interdisciplinary team. He also announced his intention to file a

formal appeal with Medicare. VNA erroneously informed

Back that he should file his appeal with National Government

Services (NGS).

Back then wrote to NGS stating his intent to appeal. The

Center for Medicare & Medicaid Services (CMS), the federal

agency charged with administering Medicare, responded that

only the legal representative of Mrs. Back’s estate could file

an appeal, and requested documents naming him as the personal representative of the estate. Back sent the requested

documentation to CMS, which ignored the documents and

again requested proof that Back was the legal representative

of Mrs. Back’s estate. Back then hired an attorney, who wrote

CMS setting forth several legal bases on which Back was

entitled to file an appeal. CMS responded that any appeal had

to be filed by the hospice provider, not Back.

In September 2009, Back filed this suit against the Secretary. He alleged that the Secretary violated her duties under

the Medicare Act and the Fifth Amendment Due Process

Clause by not providing an administrative process for a hospice beneficiary to appeal a hospice provider’s refusal to provide a drug. Back requested declaratory judgment and a

permanent injunction requiring the Secretary to provide an

administrative appeals process. He also asked the court to

fashion an administrative process. 

The Secretary moved for judgment on the pleadings. She

stated that, contrary to CMS’s representations, a hospice beneficiary may file an appeal under existing procedures. Thus,

the Secretary argued, Back’s suit was moot. In the alternative,

she argued that the court lacked jurisdiction to hear Back’s

claim because he had not exhausted his administrative remedies. The district court granted the Secretary’s motion based

on the exhaustion ground. Back timely appealed.

BACK v. SEBELIUS 7865
II.

[1] “[A]s a prerequisite to our exercise of jurisdiction, we

must satisfy ourselves that a case is not moot.” Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933, 936 (9th Cir.

2012). “To qualify as a case fit for federal-court adjudication,

‘an actual controversy must be extant at all stages of review,

not merely at the time the complaint is filed.’ ” Id. (quoting

Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997)). “An appeal is moot if no present controversy exists

as to which an appellate court can grant effective relief.” Id.

[2] Back’s only allegation is that the Secretary violated her

duties by failing to create a process for hospice beneficiaries

to appeal a hospice provider’s refusal to provide a particular

drug. He bases this allegation on the letter he received from

CMS stating that his hospice provider must file the administrative appeal. He seeks only declaratory judgment and

injunctive relief to remedy the alleged failure. However, the

relief Back seeks — an administrative appeals process open

to hospice beneficiaries — already exists. The Secretary has

confirmed this through her judicial admission to that effect,

repudiating the erroneous representations of CMS to the contrary.1

The Medicare Act provides:

1Specifically, the Secretary has admitted that Back “was mistakenly

given the name of a fiscal intermediary that handles provider claims, not

beneficiary claims, by his hospice provider, and that an employee of the

intermediary with whom he spoke provided inaccurate information.” The

Secretary has further admitted that hospice beneficiaries may pursue the

administrative appeals process described above and that Back could have

done so by “fil[ing] a claim on a CMS-1490S with Palmetto GBA, the

Medicare Administrative Contractor for [Back] and other California residents. [Back] will then receive an initial determination from the MAC. If

dissatisfied, [he] may appeal via the process under 42 U.S.C. § 1395ff and

42 C.F.R. part 405, subpart I.” 

7866 BACK v. SEBELIUS
The Secretary shall promulgate regulations and make

initial determinations with respect to benefits under

part A of this subchapter [which includes hospice

benefits] . . . in accordance with those regulations for

the following: 

(A) The initial determination of whether an individual is entitled to benefits under such parts. 

(B) The initial determination of the amount of benefits available to the individual under such parts. 

(C) Any other initial determination with respect to a

claim for benefits under such parts, including an initial determination by the Secretary that payment may

not be made, or may no longer be made, for an item

or service under such parts . . . . 

42 U.S.C. § 1395ff(a)(1). The Act further provides that any

individual dissatisfied with his or her initial determination

shall be entitled to reconsideration of the determination, a

hearing by the Secretary and, after such hearing, judicial

review of the Secretary’s final decision. See id.

§ 1395ff(b)(1)(A). 

[3] Consistent with these mandates, the Secretary has promulgated regulations that provide an administrative process

for Part A beneficiaries who are refused a benefit from their

Medicare provider. See 42 C.F.R. ch. IV, subch. B, pt. 405,

subpt. I. The regulations authorize a beneficiary to submit a

claim to the appropriate Medicare contractor to make an initial determination as to whether “items and/or services furnished are covered under title XVIII [i.e. Medicare].” Id.

§ 405.924(b); see also id. § 405.906(a) (recognizing a beneficiary as party to the initial determination).2

“After a claim is

2The regulations define “beneficiary” to include “an individual who is

enrolled to receive benefits under Medicare Part A.” 42 C.F.R. § 405.902.

BACK v. SEBELIUS 7867
filed with the appropriate contractor . . . the contractor must

. . . [d]etermine if the items and services furnished are covered

or otherwise reimbursable” and “[d]etermine any amounts

payable and make payment accordingly.” Id. § 405.920. A

beneficiary “that is dissatisfied with an initial determination

may request a redetermination by a contractor.” Id. § 405.940;

see also id. §§ 405.940-.958 (setting forth the process for a

redetermination), followed by reconsideration of the redetermination, see id. §§ 405.960-.978, an ALJ hearing, see id.

§§ 405.1000-.1054, and review by the Medicare Appeals

Council, id. §§ 405.1100-.1140; see also id. § 405.906(b)

(providing that a party to an initial determination may be

party to a redetermination, reconsideration, ALJ hearing and

Appeals Council review). Finally, the beneficiary may seek

judicial review. See id. § 405.1136. 

[4] The Secretary has judicially admitted that hospice beneficiaries may pursue claims for reimbursement under this

process if a hospice provider refuses to pay for drugs or services sought by the beneficiary. We find nothing in the regulations that would preclude hospice beneficiaries from doing

so.3 We have no reason to believe the Secretary or her agents

3Despite the Secretary’s admission, Back insists that beneficiaries may

not file an appeal under the Secretary’s procedure. He contends that,

although the Secretary’s regulations may cover hospice beneficiaries, the

Medicare Claims Processing Manual (MCPM) excludes hospice beneficiaries from pursuing an administrative appeal. He has not identified any language in the MCPM that supports his argument. On the contrary, the

MCPM appears to be consistent with the Secretary’s regulations. See

MCPM, ch. 29, § 200(B) (June 11, 2010) (quoting verbatim 42 C.F.R.

§ 405.924(b)’s requirement that a Medicare contractor “make[ ] initial

determinations regarding claims for benefits under Medicare Part A,”

including whether “the items and/or services furnished are covered under

title XVIII”), available at http://www.cms.gov/Regulations-and-Guidance/

Guidance/Manuals/downloads/clm104c29.pdf (last visited June 13, 2012);

id. § 110 (stating that beneficiaries are parties to an initial determination);

id. §§ 210, 220 (stating that a beneficiary may appeal an initial determination and describing the entire appeals process set forth by the Secretary’s

regulations). 

7868 BACK v. SEBELIUS
will disavow or disregard the established regulatory process

in the future.4 Because the Secretary has already created the

administrative appeals process that Back seeks, “no present

controversy exists as to which [we] can grant effective relief.”

Vegas Diamond Props., LLC, 669 F.3d at 936; see also

Spencer-Lugo v. INS, 548 F.2d 870, 870-71 (9th Cir. 1977)

(per curiam) (holding that a case was moot where the INS

offered the petitioners exactly what they asked for); 13B

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 3533.2 (3d ed. 2008) (“Even

when one party wishes to persist to judgment, an offer to

accord all of the relief demanded may moot the case. . . .

Action by the defendant that simply accords all the relief

demanded by the plaintiff may have the same effect as settlement or an offer of settlement. So long as nothing further

would be ordered by the court, there is no point in proceeding

to decide the merits.”). The appeal is therefore moot.5

Because no controversy exists, we do not reach the question of whether we lack jurisdiction to consider Back’s claim

under the Medicare Act because of his failure to exhaust

administrative remedies.

4We do not believe this case raises concerns of voluntary cessation.

Since her initial response to this lawsuit, the Secretary has explained that

CMS’s letter was mistaken and that hospice beneficiaries may file an

administrative appeal under the regulations discussed in text. We have no

expectation that the Secretary will in the future seek to repudiate that position. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 189 (2000); see also Thalheimer v. City of San Diego, 645

F.3d 1109, 1126 (9th Cir. 2011) (noting that concerns of voluntary cessation are of particular force in a case in which the voluntary cessation

occurred only in response to the district court’s judgment). 

5We note that the Secretary has stated that she will waive the timeliness

requirement for filing an administrative appeal in this instance to permit

Back to pursue an administrative remedy under the process described

above. 

BACK v. SEBELIUS 7869
III.

We understand Back’s frustration, having been misinformed by CMS and forced to hire an attorney and bring suit

to be properly informed of his right to appeal. As this opinion

makes clear, however, Back already has the only relief he

seeks — he and other hospice beneficiaries may utilize the

Secretary’s procedures to appeal a hospice provider’s refusal

to provide a drug or service. We expect that the Secretary will

take action to ensure that her agencies are properly informed

in the future. 

[5] We vacate the district court’s judgment, remand and

instruct the court to dismiss the case as moot. Costs on appeal

are awarded to Back.

DISMISSED AS MOOT.

7870 BACK v. SEBELIUS