Prosser v. Becerra, No. 20-3070 (7th Cir. 2021)
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Prosser, a 37-year-old Medicare recipient, suffers from glioblastoma, which causes brain tumors. The five-year survival rate hovers around 5%. Though not curative, Prosser benefits from tumor treating fields therapy (TTF), approved by the FDA in 2011. For most of the day, patients use a device that attaches to the head via adhesive patches that connect to a mobile power supply. The device emits electrical fields to the tumor, which disrupt the division of cancer cells. Early studies show that the device holds promise in prolonging life. TTF therapy is available through a single supplier, Novocure, which rents the device on a monthly basis. The therapy is expensive. Prosser must file a Medicare benefits claim for each period she uses the device. Medicare denied coverage for the treatment period January-April 2018. Though Prosser received the therapy and owed nothing, the denial left Novocure with the bill. Prosser challenged this denial through Medicare’s appeals process before filing suit.
The Seventh Circuit affirmed the dismissal of Prosser’s claim for Medicare Part B coverage, holding that she has suffered no injury-in-fact sufficient to satisfy Article III’s standing requirement. Prosser received—and continues to receive—the TTF therapy. She faces no financial liability for the treatment period Medicare denied coverage. Any future financial risk is too attenuated from the denial of the past coverage and far too speculative to establish standing.
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