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Defendant's Attorney: PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
LINDA P. SMITH,
Plaintiff - Appellant,
v.
XAVIER BECERRA, in his capacity as
Secretary of the United States Department
of Health and Human Services,
Defendant - Appellee.
No. 22-4012
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:21-CV-00047-HCN)
_________________________________
James C. Pistorino, Parrish Law Office, Pittsburgh, Pennsylvania, (Phillip Wm. Lear,
Lear & Lear PLLC, Salt Lake City, Utah, with him on the briefs), for Plaintiff-Appellant.
Joshua M. Koppel, Appellate Staff Attorney, Civil Division, United States Department of
Justice, Washington, DC (Brian M. Boynton, Principal Deputy Assistant Attorney
General, Andrea T. Martinez, Interim United States Attorney, and Abby C. Wright,
Appellate Staff Attorney, Civil Division, United States Department of Justice,
Washington, DC, and Of Counsel: Daniel J. Barry, Acting General Counsel, Gerard
Keating and Linda Keyser, Attorneys, Department of Health and Human Services, with
him on the brief), for Defendant-Appellee.

Description: 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
Appellate Case: 22-4012 Document: 010110723774 Date Filed: 08/12/2022 Page: 2
3
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.
Appellate Case: 22-4012 Document: 010110723774 Date Filed: 08/12/2022 Page: 3
4
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.

* * *

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.

Outcome: Dismissed because of mootness.

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