(CN) – There may be administrative remedies available to a California man who got the runaround from the government while seeking reimbursement for his late wife’s costly pain medication, the 9th Circuit ruled Thursday.
Howard Back cannot sue, however, and the whole litigation could have been avoided if National Government Services (NGS) had given Back the correct information in the first place, according to the nine-page decision.
Back’s wife died in 2008 while under the care of hospice provider Visiting Nurse Association (VNA). To alleviate her constant pain near the end, Mrs. Back’s doctor prescribed the pain medication Actiq.
After the VNA refused to cover the cost of that medication, however, Back paid $5,940 out of pocket and told asked the VNA about its appeals process.
Though VNA told Back to file his appeal with NGS, that information turned out to be incorrect.
Back hired an attorney when the Center for Medicare & Medicaid Services said he needed to prove that he was the legal representative of his wife’s estate.
The agency later told Back that “any appeal had to be filed by the hospice provider, not Back,” according to the court.
In a federal complaint, Back took aim at Secretary of Health and Human Services Kathleen Sebelius.
Back claimed that she had violated his Fifth Amendment rights and the Medicare Act by failing to provide an appeal process when a hospice provider refuses to cover medication.
When Sebelius countered that there were existing procedures for Back’s appeal, a federal judge granted the government judgment on the pleadings.
A three-judge panel of the 9th Circuit confirmed Thursday.
“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,” Judge Raymond Fisher wrote for the unanimous panel.
“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,” he added. “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.”