American Kidney Fund asks CMS to protect ESRD patients’ rights to insurance choice and charitable assistance


Comment on HHS notice of benefit and payment parameters for 2018 warns against rules favorable to insurers at the expense of vulnerable patients

ROCKVILLE, Maryland (October 10, 2016) – The American Kidney Fund (AKF) is calling on the Obama Administration to ensure that kidney patients and people with other chronic conditions continue to have the same freedom of choice in insurance coverage as all Americans, even if they need charitable assistance to afford it.

In its comment letter filed with the Centers for Medicare & Medicaid Services (CMS) on the 2018 Notice of Benefit and Payment Parameters (NBPP), AKF asked CMS to promulgate a final rule that strengthens the ability of patients with end-stage renal disease (ESRD) to choose a Qualified Health Plan (QHP) as their primary insurer—not only in theory, but also in practice, by guarding patients against unfair insurer billing practices and by protecting patients’ right to use charitable assistance to afford premiums.

“The reasons ESRD patients might want to choose a Qualified Health Plan in the Marketplace are numerous,” AKF said. The nonprofit noted that even though most ESRD patients can become eligible for Medicare regardless of age, the federal government has recognized their unique circumstances through long-established law and regulations giving them a choice between Medicare and private coverage. CMS and the IRS have affirmed that ESRD patients may enroll in the Marketplace.

The majority of ESRD patients choose Medicare, but as ESRD patients have recently explained to CMS, some may instead opt for a Marketplace plan for any one of a number of compelling reasons. Medicare supplemental coverage (Medigap) is not available to ESRD patients under 65 in about half of the states, exposing these individuals to a 20 percent out-of-pocket cost burden that has no limit. Medicare provides individual coverage, but younger ESRD patients often need a plan offering family coverage. Marketplace plans may offer lower out-of-pocket costs for medications, a particularly important consideration in a patient population that has numerous co-morbidities, including diabetes and hypertension.

CMS observed in its proposed rule that some insurance companies have a provision in their individual health insurance policies indicating that the insurance plan will pay secondary to Medicare not only for individuals who are currently covered by Medicare, but also for those who could obtain Medicare coverage but are not currently covered. CMS asked for comment on this practice.

“We are deeply concerned about the effect of such provisions on the ESRD patient population,” AKF responded to CMS. “In developing such provisions, insurers are burdening ESRD patients with high out-of-pocket costs that will effectively force them onto Medicare or will leave them with devastating medical bills. Such provisions are a de facto way of allowing insurers to relieve themselves of covering high-cost ESRD patients.”

Halt insurer restrictions on charitable assistance

AKF commended the Administration’s recent efforts to ensure the Marketplace remains an attractive market for insurers and an affordable option for consumers. But AKF also issued an important caution.

“In efforts to make the Marketplace more attractive for insurers, CMS must not take an action that would make it difficult or impossible for an entire class of disabled individuals (low-income ESRD patients) to have this type of insurance. Their departure from the Marketplace will not fix what ails the ACA; the number of ESRD patients involved is miniscule compared to overall Marketplace enrollment. But the inability of patients with ESRD to access this insurance will, indeed, cause individual patients great harm. CMS must promulgate regulations that protect these individuals’ ability to rely on charitable aid.”

Noting that many low-income ESRD patients do not have the practical ability to afford a QHP without charitable assistance, and that nonprofits have historically served as the safety net for chronically ill patients who cannot afford their health care, AKF asked CMS to clarify the role of nonprofits in providing charitable premium assistance.

“When insurers attempted to refuse charitable premium assistance on behalf of persons with HIV/AIDS in 2014, the Administration stepped in and issued an interim final rule mandating insurers to take premium payments from the Ryan White HIV/AIDS program. Today, we are asking that the Administration protect Americans with other chronic diseases in the same manner,” AKF wrote.

AKF cited concerted efforts by insurers to steer low-income ESRD patients off their private insurance plans by refusing premium payments on behalf of policyholders from AKF. AKF’s Health Insurance Premium Program (HIPP) has operated for close to 20 years under HHS Office of Inspector General Advisory Opinion 97-1, and provides assistance for all types of insurance coverage, including Medicare Part B, Medigap, COBRA and employer group plans, and Marketplace plans. The majority of AKF’s grant beneficiaries get help from AKF for their Medicare Part B and Medigap premiums, but AKF is working to ensure that low-income patients continue to have the ability to come to AKF for help with any insurance coverage that best meets their needs.

HIPP helps about 80,000 ESRD patients annually, including about 6,400 who are enrolled in Marketplace plans, 0.05 percent of total Marketplace enrollment.

“Unbelievably, insurance companies are putting in place policies that restrict individuals’ freedom to receive charitable assistance and use that money to pay their health care costs,” AKF said in the comment letter.

Some of the nation’s largest carriers are going so far as to send letters to their policyholders demanding that individuals attest under penalty of perjury that they are not receiving charitable assistance to help with health insurance premiums. These insurance companies are telling patients that if they do accept such assistance, their insurance coverage will be terminated. Some AKF grant recipients have lost their coverage as a result. AKF noted that insurer filings for 2017 Marketplace plans signal the expansion of this practice.

AKF urged CMS to clarify in the 2018 NBPP that insurance carriers are required to accept third-party premium assistance from recognized 501(c)3 charities and to clarify that insurers may not require their enrolled members to attest to the source of their personal funds, and may not terminate an individual’s coverage simply because that person is receiving charitable assistance to help them afford health insurance.

“We believe it is a fundamental right of every American to receive charitable assistance and to use that assistance for important needs, including health coverage,” the AKF letter said. “Allowing insurance companies to require individuals to attest to the source of their personal income is antithetical to our nation’s fundamental principles of free speech and freedom of association. The government must not permit health insurance carriers to dictate to Americans what they may and may not do with charitable assistance that they have received from recognized 501(c)(3) charities.”

In its comments, AKF also reiterated guardrails that it has previously proposed to CMS and state regulators. These guardrails would make it possible for legitimate charities to continue helping low-income patients pay for insurance, while also protecting against fraud and abuse.

The full comment letter from AKF may be found here.

About the American Kidney Fund

As the nation’s leading nonprofit working on behalf of the 31 million Americans with kidney disease, the American Kidney Fund is dedicated to ensuring that every kidney patient has access to health care, and that every person at risk for kidney disease is empowered to prevent it. AKF provides a complete spectrum of programs and services: prevention outreach, top-rated health educational resources, and direct financial assistance enabling 1 in 5 U.S. dialysis patients to access lifesaving medical care, including dialysis and transplantation.

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