Linda P. Smith v. Xavier Becerra

Salt Lake City, Utah civil litigation lawyer represented Plaintiff, who sued Defendant seeking reimbursement for health care.



Like many diabetics, Linda Smith uses a prescribed continuous glucose

monitor (CGM) to track and regulate her glucose levels. When Smith purchased

her CGM and its necessary supplies between 2016 and 2018, she sought

reimbursement for her expenses through her medical insurance program,

Medicare Part B. Medicare administrators denied her claims. Relying on a 2017

ruling issued by the Centers for Medicare and Medicaid Services (CMS),

Medicare administrators concluded that Smith's CGM is not "primarily and

customarily used to serve a medical purpose” and therefore is not covered by

Medicare Part B. Smith appealed the denial of her reimbursement claims through

the multistage Medicare claims review process. At each stage, the respective

adjudicator confirmed the denial of her claims.

Smith then sued the Secretary of the Department of Health and Human

Services in federal court, seeking monetary, injunctive, and declaratory relief.

Contending that her CGM and supplies satisfied the requirements for Medicare

coverage, Smith requested that the district court (1) order the Secretary to pay her

claims; (2) declare that CGMs are covered by Medicare; and (3) set aside the

2017 ruling as unlawful because it did not go through the proper rulemaking

process.

Instead of asking the court to uphold the denial of Smith's claims, the

Secretary admitted that Smith's claims should have been covered and that the

agency erred by denying her claims. The Secretary requested a remand so the

agency could reimburse Smith's claims. Rather than accept the Secretary's

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admission of error, Smith argued that the Secretary only admitted error to avoid

judicial review of the legality of the 2017 ruling.

During Smith's litigation, CMS changed its Medicare coverage policy for

CGMs. Prompted by several adverse district court rulings, CMS promulgated a

formal rule in December 2021 classifying CGMs as durable medical equipment

covered by Medicare Part B. But the rule applied only to claims for equipment

received after February 28, 2022, so pending claims for equipment received prior

to that date were not covered by the new rule.

Considering the new rule and the Secretary's confession of error, the

district court in January 2022 remanded the case to the Secretary with

instructions to pay Smith's claims. The district court did not rule on Smith's

pending motions regarding her equitable relief claims; instead, the court denied

them as moot. Smith moved to alter or amend the judgment, contending that her

equitable claims were still live, but the district court denied the motion.

Smith appealed, arguing that her equitable claims are justiciable because

the 2017 ruling has not been formally rescinded and Medicare administrators can

still rely on the ruling to deny claims for equipment received prior to

February 28, 2022. But in May 2022—shortly before oral argument in this

case—the Secretary issued a new ruling. The 2022 ruling expressly rescinded the

2017 ruling and ordered Medicare administrators to approve CGM claims for

equipment received prior to February 28, 2022. The Secretary asserted the 2022

ruling further rendered Smith's claims moot.

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We agree with the Secretary that Smith's claims are moot. Taken together,

the December 2021 final rule and the 2022 CMS ruling ensure that pending and

future claims for CGMs, including the equipment owned by Smith, will be

covered by Medicare. Because the recent regulatory developments moot Smith's

equitable claims, we do not have jurisdiction to consider Smith's appeal. We

further conclude that although CMS voluntarily changed its CGM coverage policy

during this litigation, the voluntary cessation doctrine to avoid mootness does not

apply.



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We agree with the Secretary that Smith's claims are moot. Taken together,

the December 2021 final rule and the 2022 CMS ruling ensure that pending and

future claims for CGMs, including the equipment owned by Smith, will be

covered by Medicare. Because the recent regulatory developments moot Smith's

equitable claims, we do not have jurisdiction to consider Smith's appeal. We

further conclude that although CMS voluntarily changed its CGM coverage policy

during this litigation, the voluntary cessation doctrine to avoid mootness does not

apply.

Dismissed because of mootness.