Alliance Submits Hospice Amicus Brief

The Alliance, through counsel, Arnall Golden Gregory, has moved for leave to file, and submitted, an amicus brief in the Sixth Circuit appeal In Home Health, LLC v. Robert F. Kennedy, Jr. In addition, we have secured the American Academy of Hospice and Palliative Medicine’s (AAHPM) support to join as amicus on this brief. We now await the court’s decision whether we may proceed amicus curiae. At that point, the brief would be added separately to the record. 

As background, Plaintiff hospice In Home Health, LLC has appealed to the U.S. Court of Appeals for the Sixth Circuit following the U.S. District Court for the Northern District of Ohio’s decision upholding a partially unfavorable ALJ ruling. At issue is whether the ALJ overstepped by effectively “playing doctor,” disregarding expert testimony, treating Local Coverage Determinations (LCDs) as binding requirements, and refusing to apply the statutory limitation of liability under Section 1879 of the Social Security Act (42 U.S.C. § 1395pp).

This is a matter of first impression for federal courts and will set precedent for hospices within the Sixth Circuit and can be persuasive for courts nationally. Given the case’s significance, the Alliance was invited to serve as amicus curiae and has moved to file an amicus brief in partnership with the American Academy of Hospice and Palliative Medicine. We believe our participation can improve the likelihood of oral argument and help reinforce both legal and policy perspectives critical to the field, particularly in the wake of a pervasive audit climate for hospices nationwide.

The heart of the dispute touches on several issues:

• The inherent difficulty physicians face in predicting time of death,
• physicians are central to the hospice process and their assessments regarding terminal illness deserve deference,
• restrictive interpretations deprive patients and their loved ones of the freedom to make basic end-of-life decisions regarding palliative care,
• bureaucratic reversals of physician assessments will trigger confusion for patients and families during an already emotionally vulnerable time,
• too much bureaucratic oversight will compromise medical judgment and lead to chilling effect where physicians hesitate to recommend medically appropriate hospice care,
• restrictive interpretations will increase patient financial burdens through higher costs for curative care, and
• the need to enforce limitation of liability provisions to account for the inherent challenges in terminal prognosis.

The brief emphasizes that death cannot be predicted with precision and that Congress structured the hospice benefit accordingly. It addresses the harm of adverse court rulings on patient access and the chilling effect it will have on providers and physicians, such as eroding the trust between patients and physicians, delayed access to hospice, and increased costs for Medicare. We also argue that the hospice framework established by Congress and HHS positions the physician as the central figure in determining terminal illness. In conclusion, we urge the Court the reverse the judgment of the district court and adopt a standard “that an ALJ give deference to the treating physicians’ prognosis in the absence of objective clinical evidence that contradicts that prognosis.”