In Home Health, LLC v. Robert Kennedy, Jr. Argued Before the U.S. Court of Appeals

[Originally published on Alliance Daily] On April 30, a pivotal hospice case, In Home Health, LLC v. Robert Kennedy, Jr. (CA-6, No. 25-3542), was argued before the U.S. Court of Appeals for the Sixth Circuit. Joseph Diedrich of Husch Blackwell, LLP represented the hospice. The Alliance and the American Academy of Hospice and Palliative Medicine, represented by Bill Dombi and Jason Bring of Arnall, Golden, and Gregory. L.L.P., submitted an amicus curiae (friend of the court) brief in November last year to support a reversal of the ALJ and U.S. District Court earlier rulings. 

 In Home Health, LLC v. Robert Kennedy, Jr. (CA-6, No. 25-3542) presents two longstanding issues that have previously evaded a high-level judicial review. The court faces the essential question as to whether an Administrative Law Judge (ALJ) can ignore the medical judgment of a hospice physician and determine that a patient does not meet Medicare’s “terminal illness” requirements in the absence of any other medical opinion in the record.  

The second issue is how to apply the longstanding Medicare provision that is intended to protect hospices from retroactive determinations denying coverage on the basis that the patient was not terminally ill.  Enacted in 1972, the so-called “waiver of liability” under Section 1879 of the Social Security Act protects a provider that renders services when it did not know or have reason to know the patient did not meet certain Medicare conditions of payment. The hospice “terminal illness” standard was added to that provision in 1997.  

Questions and comments were offered by all three judges specifically focused on the standards for determining whether a patient has a terminal illness and the physician’s role in the life expectancy prognosis. The bulk of the oral argument was driven by the judges with a focus on the waiver of liability provision.  

A ruling from the court is expected in 2-4 months. While the judges’ comments may indicate the ultimate direction of the eventual decision, there is no guarantee on the outcome. The court’s ruling will be precedential in the states that make up the Sixth Circuit jurisdiction (Michigan, Ohio, Kentucky, and Tennessee), though it would be influential in other states given the dearth of other court rulings affecting the Medicare hospice benefit.  

The audio recording of the oral argument is available here