Hospice beneficiaries at a draw with HHS

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What hospice services will pay for, and whether beneficiaries receive correct information from the Centers for Medicare & Medicaid Services, converged as issues in court this summer.

When the wife of Howard Back became terminally ill, she chose to have hospice services from the Visiting Nurses Association. Her physician prescribed a pain medication called Actiq in 2008, but the VNA would not give her the drug. Back paid close to $6,000 for his wife's medication before she died.

A few months later, he submitted the Actiq bills to the VNA for reimbursement, but it declined to pay.

CMS told Back only the legal representative of his wife's estate could appeal. He sent back requested documentation to CMS, which “ignored the documents and again requested proof that  he was the legal representative of Mrs. Back's estate,” court records state. CMS told Back any appeal had to be filed by the hospice provider.

In 2009, Back filed a lawsuit against Kathleen Sebelius so that she would be required to provide an administrative appeals process. Sebelius said that while CMS had told Back otherwise, a hospice beneficiary may file an appeal.

She admitted to the court 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 U.S. 9th Circuit Court of Appeals agreed in July that this made Back's case moot. However, it expressed disappointment with HHS.

“We expect that the Secretary will take action to ensure that her agencies are properly informed in the future,” wrote Judge Raymond C. Fisher.

The Center for Medicare Advocacy, which represented Back, said it hoped the decision would lead to due process for “all other Medicare beneficiaries who are denied coverage for end-of-life care.”