Roughly 37 million Americans live with chronic kidney disease (CKD), and of those 37 million, more than 800,000 have seen their condition progress to end-stage renal disease (ESRD), also known as kidney failure. For these individuals, access to life-sustaining kidney care, including critical dialysis treatments, means the difference between life and death.
Unfortunately, a recent Supreme Court decision has upended vital protections for ESRD patients — protections that Congress initially passed 40 years ago through the Medicare Secondary Payor Act (MSPA). Congress passed MSPA in 1980 to allow ESRD patients the option to keep their private insurance as their primary insurance for 12 months before transitioning to Medicare. Over the years, Congress has strengthened this protection by extending MSPA to the current 30-month period. This law was also designed to counter a perverse incentive for insurers to ignore kidney disease, thereby causing kidney failure to accelerate and pushing these beneficiaries to Medicare once they go on dialysis.
However, in Marietta v. DaVita, the Supreme Court essentially ruled that employer-based group health plans could carve out critical kidney care services—including dialysis treatments and access to nephrologists and other kidney care specialists—from their coverage. This effectively allows insurers to push people with kidney failure off their private plans after these people have paid into the plans for decades, right when patients need those protections most — negating the intent of the MSPA. Patients also might have to change health care providers at a time when they most need consistent care to help ensure best outcomes.
Because of this Supreme Court decision, ESRD patients could be targeted by group health plans and lose access to high-quality kidney care, including potentially life-saving transplants and dependent coverage for their family members. If that happens, patients could also be exposed to unlimited out-of-pocket expenses for medical care because Medicare does not cap these, and some patients may not be able to get coverage for benefits like dental or vision coverage. A mass shift of patients onto Medicare prematurely would also put financial strain on taxpayers and the Medicare program overall.
Even though it was a split decision by the Supreme Court, both the majority and minority opinions stated that Congress needed to further clarify the law if it wanted to ensure these protections for ESRD patients remained in place.
Fortunately, a bipartisan group of lawmakers in the U.S. House of Representatives has introduced a new bill that would do just that. If passed, the Restore Protections for Dialysis Patients Act (H.R. 6860) would amend the MSPA and protect patients living with ESRD from discrimination by private health insurance plans, including premature loss of private health care coverage.
Since people with kidney failure are more likely to have low incomes and to be from historically marginalized communities, restoring the protections that the Supreme Court overturned is also a matter of health equity. For these disadvantaged patients and communities, premature loss of health care coverage and associated increases in out-of-pocket costs or premiums are particularly devastating.
Not only would this bipartisan bill be a much-needed solution that helps protect patient access to their individual or employer-sponsored health care coverage and providers, it would also enable ESRD patients to better plan for the transition from private insurance to Medicare. Allowing patients to take full advantage of this transition period makes it easier to manage gaps in coverage that might arise from this shift, including for vision, dental, and hearing offerings and coverage for dependents and spouses.
As representatives of two of the nation’s leading kidney care patient advocacy groups, we thank Reps. Mike Kelly (R-Pa.), Yvette Clarke (D-N.Y.), Neal Dunn (R-Fla.), Danny Davis (D-Ill.), John Joyce (R-Pa.) and Raul Ruiz (D-Calif.) for coming together to introduce this commonsense solution. Now, leaders from both sides of the aisle must work to support and pass H.R. 6860 as quickly as possible to restore vital protections that ensure quality, choice, and the best possible outcome for people with ESRD.
LaVarne A. Burton is the president and CEO of the American Kidney Fund and Hrant Jamgochian is the CEO of Dialysis Patient Citizens.