After years spent fighting to defend and protect the Affordable Care Act, the Obama administration took action that violates the central tenets of its signature health care law. The about-face came in a regulation handed down last week by the Centers for Medicare and Medicaid Services that tacitly allows insurers to discriminate against dialysis patients based solely on their health condition.
CMS wrote the regulation in response to concerns from insurance companies that patients with kidney failure, also called end-stage renal disease (ESRD), were being improperly steered into private health plans by organizations that assist them with their premiums. But instead of ensuring that these patients receive accurate information about their coverage options, CMS empowered insurers to prevent them from receiving the very assistance that makes their health insurance affordable.
Insurance coverage is particularly important for ESRD patients, who have complex and demanding medical needs. Dialysis treatments are administered multiple times per week for several hours at a time, often leaving patients exhausted and unable to work. The resulting financial strain can make health insurance unaffordable without help. Charitable assistance makes it possible for many ESRD patients to access the care they need to stay alive.
The CMS rule puts a patient’s ability to receive that assistance into the hands of their insurance company. It requires dialysis providers to guarantee that insurers “are informed of and have agreed to accept” patient assistance payments from charitable organizations. It further states that such assistance must be withheld from patients “if an issuer does not agree to accept the payments for the duration of the plan year.”
The rule applies only to dialysis patients, amounting to discrimination of the very sort that the ACA was supposed to eliminate. The Obama administration has spoken repeatedly about the importance of preventing insurers from denying coverage to anyone with a pre-existing condition. CMS has now made an exception to that rule for ESRD patients. The unmistakable message to the dialysis community is that the patient protections created in the health care law apply to everyone but them.
CMS says there is no impact on ESRD patients because federal law gives them access to Medicare at any age. But individual market plans offer important services that Medicare does not cover. Many of them offer care coordination services that are not included in Medicare. Thanks to the ACA, individual market plans include a cap on out-of-pocket expenses that does not apply in Medicare. In addition, ESRD patients under age 65 are prohibited in half the states from buying Medigap coverage, leaving them responsible for the 20 percent of health care costs not covered by Medicare.
CMS ignores these benefits, preferring a heavy-handed approach that picks winners and losers. You can receive help paying your premiums if you have HIV/AIDS, but not if you are in renal failure. An administration that has put immeasurable emphasis on patient choice is taking choice away from patients with critical medical needs.
The major insurers certainly prefer it that way. They would rather shovel high-need patients into Medicare than pay for the full range of preventive and treatment services those patients need. The CMS rule will encourage insurers to obstruct patient access to critical care, such as a preemptive kidney transplant, surgery for a fistula to ensure safe dialysis, or even patient education about measures to help delay or avoid kidney failure.
CMS made the rule especially painful by issuing it just two days before the Dec. 15 deadline to enroll in marketplace coverage that will take effect Jan. 1 of next year. The administration had months to issue proposed guidance on this subject, but by waiting until the last minute it gave dialysis patients hardly any time to comprehend the change and make available adjustments to ensure they will be covered in the new year.
We support effective efforts to prevent providers and insurers from improperly steering patients into particular insurance plans. But those efforts should not infringe on patient choice. Patients pay into their private health insurance coverage for years expecting to get the care they need when they need it, not to be pushed out when they are diagnosed with a chronic health condition.
Hrant Jamgocian is CEO of Dialysist Patient Citizens. Dialysis Patient Citizens is America’s largest patient-led organization representing dialysis patients, DPC’s membership consists of more than 28,000 dialysis and pre-dialysis patients and their families.
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