Dialysis patient protections must be a year-end priority for Congress

With the end of the midterm elections, one of the busiest times of the year for Congress has arrived. And while the usual year-end priorities like government funding will likely take center stage, Congress also has a critical health care issue it must address before this session ends. 

Earlier this year, the Supreme Court issued a ruling that could threaten access to employer health plans for thousands of dialysis patients across the country. Unless Congress takes action, the potential ramifications for America’s kidney community could be enormous. 

For decades, private employer-provided health plans interpreted the anti-discrimination measures of the Medicare Secondary Payer Act as protecting dialysis patients’ choice to remain on their private plans for up to 30 months, at which point they would transition to Medicare — also known as the Medicare Secondary Payer (MSP) period. That all changed with June’s decision in Marietta Memorial Hospital v. DaVita. The Supreme Court ruled that it’s no longer discrimination if you apply the same standard to everyone. In other words, a private health plan could limit its coverage to 30 dialysis treatments if it provides the same benefit to everyone, even though only kidney failure patients need dialysis for longer to stay alive. 

Thirty treatments, however, is only sufficient to last a couple of months for most patients. Individuals with kidney failure need dialysis (or a transplant) to live, and most receive treatment at least three times each week. If their private plan won’t cover these lifesaving treatments, patients will have no choice but to switch to Medicare long before the 30 month MSP period is over. Unless Congress acts fast, the effects of this decision could be devastating.

Forcing patients to switch to Medicare before they would otherwise opt to do so could put patients and their families at incredible economic risk. Employer-provided health care plans often provide more comprehensive coverage than Medicare does on its own, so for many patients, losing those plans involves losing coverage for dental and vision care, and even necessary prescriptions. 

Medicare also will only cover 80 percent of the cost of a patient’s dialysis treatments, resulting in potentially thousands in out-of-pocket costs for each one unless a patient lives in a state that guarantees access to Medigap plans that pay the remaining 20 percent. Most patients, unfortunately, do not. It isn’t just about coverage for the patient, either, as many dialysis patients rely on their employer-provided plans to provide coverage for spouses and children. If they are forced to switch to Medicare early, then those family members lose their coverage, as well. 

Taking legislative action is also important for ensuring greater equity in kidney care. African American, Hispanic, Native American, and Alaska Native communities experience kidney disease at higher rates than white Americans, meaning those communities are at greater risk without a fix to protect patients. Racial and ethnic disparities already persist in employer-provided plans, and allowing this decision to stand would only exacerbate those inequities. 

The incentive for insurers in this situation, however, is clear. They can effectively force patients off of their plans earlier than expected and onto the publicly-funded Medicare system. While they save money, patients, families, and taxpayers lose. 

The Supreme Court’s decision earlier this summer carries incredible risk for dialysis patients. It goes against the protections that the Medicare Secondary Payer Act was intended to codify, and both patients and their families — who are already struggling to navigate a life-threatening disease — are left to wonder how they will get by. 

Passing legislation to reaffirm those protections will only get more complicated if Congress allows this issue to wait until next year. This is an opportunity lawmakers cannot afford to miss.

Harold M. Love, Jr. serves as assistant Democratic leader in the Tennessee House of Representatives and is the current vice president of the National Black Caucus of State Legislators.