Supreme Court to review federal laws around dialysis coverage

The U.S. Supreme Court has agreed to review federal laws outlining how employee health plans must treat patients with end-stage renal disease.

The nation’s highest court granted a petition to review regulations on Friday, after the Sixth U.S. Circuit Court of Appeals ruled that an Ohio hospital’s health plan violated the federal Medicare Secondary Payer Act and the Employer Retirement Income Security Act when it categorized all dialysis providers as out of network. The decision also conflicted with an earlier ruling from the Ninth U.S. Circuit Court of Appeals.

Dialysis provider DaVita Inc. sued Marietta Memorial Hospital Health Plan over the coverage policy in December 2018, saying the integrated system’s low reimbursement for dialysis treated these clinicians differently from other providers, left ESRD patients with higher out-of-pocket costs and ultimately pushed them to enroll in traditional Medicare.

Dialysis removes waste and fluid from the blood when the kidneys are no longer working. A district court dismissed DaVita’s claims, saying that because the plan offers the same benefits to all its enrollees, its coverage does not explicitly discriminate against ESRD patients and, therefore, does not violate the Medicare Secondary Payer Act. But the Sixth Circuit reversed this decision, in part, saying that since ESRD patients require the majority of dialysis procedures, they are disproportionately impacted by this policy.

In DaVita’s most recent brief to the Supreme Court on Sept. 20, the dialysis provider said the case was unfit for review by the nation’s highest court and urged officials to adopt the Sixth Circuit’s position.

“That the miniscule fraction of dialysis users who do not suffer from ESRD are also adversely affected does not change the basic equation, just as the fact that non-Jews occasionally wear yarmulkes cannot obscure the reality that a tax on yarmulkes would be a tax on Jews,” the brief says.

In another case, the Ninth Circuit disagreed with DaVita’s argument against another employee health plan, noting that ESRD patients are not the only individuals who use dialysis, and that the health plan’s policy does not meet the explicit standards necessary to count as discrimination under federal law.

The COVID-19 pandemic could increase the incidence of acute kidney injury, thus expanding the proportion of dialysis users without ESRD, and federal changes that require Medicare Advantage health plans to enroll ESRD patients for the first time this year make this a more pressing issue than ever, Marietta wrote in its most recent brief to the Supreme Court on Oct. 4.

“The resolution proposed by DaVita—that employer group health plans simply accede to the Sixth Circuit approach—would be fine for DaVita, but would require the plans, to the detriment of the millions of working families that they protect, to curtail coverage of other vital medical procedures in order to service the preemptive needs of dialysis providers,” Marietta’s brief said.

The Supreme Court has not yet scheduled when it will hear arguments for the case.

DaVita and Marietta Memorial Hospital Health Plan did not respond to interview requests.