I know I haven’t finished the two other blog posts about how SCOTUS (The Supreme Court of the United States) has been subverting the laws of the US over the past few years. But, this new ruling affects dialysis patients (and dialysis providers), so I will share this one first.  (And, I haven’t gotten to the NY gun ruling abrogation or the overturning of Roe v. Wade!)

If you’ve been reading my blog for a while, you know that folks like me worked hard to get dialysis patients covered under Medicare, to afford these folks the ability to obtain life-saving dialysis treatment. That law passed as HR-1 back in 1972.

Initially, the law meant that all dialysis patients would be picked up by Medicare once they were covered by private insurance for 12 months. Those folks who lacked private insurance had to cover their own costs for the first 12 months before Medicare picked up the tab. (Note that there are plenty of contrivances to get patients covered by insurance so they don’t go bankrupt covering the $ 35,000 annual costs of dialysis. I‘ve discussed them previously.)

But, back when it was thought that Medicare was going under (a recurring theme proclaimed by the GOP), the 12 month waiting period was extended to 30 months as a cost-savings concept in 1980.

As a result, nearly everyone with ESRD (end-stage renal disease) qualifies for Medicare coverage (after 30 months). For those first 30 months, private insurers cover the dialysis fees (which are higher than the Medicare reimbursement rates.)

To ensure that private health plans wouldn’t shed ESRD patients from their plans and force them into the Medicare system, the law stipulates that insurers can not discriminate against patients with ESRD, (A plan “may not differentiate in the benefits it provides between individual having end stage rental disease and other individuals covered by such plan.”)

And, that’s how it is for most insurers.

Except, the Marietta Memorial Hospital Employee Health Benefit Plan (MMHEHBP) came up with a most unusual wrinkle. The plan covers its insured via three tiers of reimbursement benefits; the highest  cost tier is what applies to out-of-network providers. (This is not atypical for most insurers.) But, what MMHEHBP did for dialysis patients was most “creative”. It elected to cap reimbursement for dialysis at 87.5% of the Medicare rate (i.e., the “out-of-network” tier)- which is significantly below industry-wide standard of “reasonable and customary” rate.

As such, DaVita, the second largest dialysis provider in the US, sued the plan. It alleged that the hospital was violating the Medicare Secondary Payer Act- the provisions that prevents health plans from discriminating against dialysis patients. It further alleged that the MMHEHBP incentivized patients to switch to Medicare to avoid the higher copays and deductibles (or being balance-billed) for dialysis treatments.

Well, the case eventually reached SCOTUS. And, Justice Brett Kavanaugh wrote the majority opinion. In under 7 pages, the opinion holds that MMHEHBP provides the same benefits by stipulating that it uses that rate to cover dialysis costs whether or not the patient has ESRD. (Folks can be put on dialysis for short periods to treat poisoning, temporary kidney failure due to disease, etc.) Talk about taking a literal approach- that clearly is not in concert with the Congressional thinking.

The two dissenting justices (Sonia Sotomayor and Elena Kagan) clearly recognized that this was a contrivance to avoid the consequences of the Medicare Secondary Payer Act.

Another SCOTUS screwup.

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