Blog post

The Restore Protections for Dialysis Patients Act explained

AKF-supported legislation would restore the Medicare Secondary Payer Law

Editor's note: This blog post contains a number of insurance-related terms that may not be familiar to everyone. To help you understand the protections this new bill provides, we have included a glossary at the end of the post to explain what those terms mean.

An African American woman choosing health insurance coverage on a laptop

Earlier this year, the Supreme Court issued a ruling that would essentially allow employer-sponsored insurers to only offer dialysis as an "out-of-network" service. This means that many people on dialysis could soon find themselves on a health insurance plan that does not have an option to go to an "in-network" dialysis provider. As a result of the decision in Marietta Memorial Hospital Employee Health Benefit Plan et al v. DaVita Inc. et. al., the American Kidney Fund (AKF) is currently advocating for legislation that would restore this important service for people on dialysis.

Most people tend to only go to health care providers who are in-network because they know what the copays and deductibles will be. When they are forced to go to out-of-network providers, they usually face higher out-of-pocket costs than when they see someone in-network. They could also find themselves having to pay the full amount up front, and then get a portion refunded by their health insurance company. This is not feasible for most patients. The Supreme Court's ruling noted that the way current law governing these benefits is written, health insurers are allowed to make this change. We are now working with a coalition of kidney organizations to ensure that dialysis is offered as an in-network service through bipartisan and bicameral federal legislation.

The Supreme Court decision has disrupted how end-stage renal disease (ESRD) patients have accessed treatment for the past 40 years. Ten years after Congress passed legislation that granted Americans with ESRD on dialysis eligibility for Medicare regardless of age, they passed the Medicare Secondary Payer Law (MSP) in 1982. The MSP law gives dialysis patients the option to retain their employer group health plan or COBRA coverage for up to 30 months before moving to Medicare as their primary insurance.

Specifically, the MSP provisions protect dialysis patients from discriminatory practices by insurers that would discourage their enrollment in a private plan before transitioning to Medicare. Such a practice would include the health insurer not providing options for in-network dialysis treatments. The Supreme Court interpreted the MSP law in a manner that would allow plans to get around those protections for ESRD patients and undermine Congress's intent in adopting them. The Restore Protections for Dialysis Patients Act will ensure that is not possible and patients' protections remain in place.

The Restore Protections for Dialysis Patients Act (S. 4750 and H.R. 8594) would clarify the requirement that insurance companies comply with the MSP law by specifically stating that a health plan cannot discriminate against dialysis patients by providing less dialysis services compared to services for other chronic illnesses. It will also ensure that dialysis patients have access to the care they need on their employer-sponsored insurance for 30 months before moving to Medicare as their primary insurance.

This legislation is crucial to ensuring people on dialysis receive the services they need:

  • Private insurance covers more services than Medicare: Dialysis patients do not just need dialysis treatment. They also need health services that are not covered by Medicare, such as behavioral health, dental and vision care. Private insurance often has an out-of-pocket maximum, which Medicare does not.
  • Creates health insurer "skin in the game:" Medicare has provided important health insurance for millions of people on dialysis and has enabled ESRD patients to access life-saving treatment. Medicare coverage of dialysis, however, provides health insurers with an opportunity to "drop" these patients and quickly move them to Medicare. To ensure that health insurance companies are focusing on prevention and the wellness of their subscribers, MSP requires health insurers to cover the cost of the first 30 months of dialysis as an economic incentive to keep their subscribers as healthy as possible.
  • Less time for patients' family to find insurance: Eighty percent of dialysis patients are too sick to work. The MSP law exists for people who are new to dialysis and can still work or who have access to employer insurance through a spouse or family member. When the 30-month coordination period is over (or at any time during the 30 months per the patient's choice), the ESRD patient must transition to Medicare. Since Medicare does not cover families, the patient's family may need to find alternative insurance coverage. The 30-month coordination period gives them time to do this.
  • Savings for taxpayers: Medicare spends about $51 billion a year on costs associated with dialysis patients. To offset some of those costs to taxpayers, Congress passed MSP to give patients 30 months to transition to Medicare as their primary insurance; private health insurance is secondary.

Please contact your legislators to ask them to support this important legislation by simply clicking here to send them a message.


Annual out-of-pocket maximum: The total amount of money that you must pay for health care services before insurance will provide full coverage. This does not include your premium (see below). Once you hit your annual out-of-pocket maximum, all services should be provided without any cost-sharing.

Coinsurance: The amount that you pay when you have a health care service provided. The amount is based on a percentage of the cost, and the percentage is outlined in your health insurance policy.

Copay: A predetermined amount that you pay when you have a health care service provided. It is a flat rate (not a percentage), and the amount is outlined in your health insurance policy.

Cost-sharing: The amount you are responsible to pay in addition to your premium. Cost-sharing can be coinsurance or copays. It can also include your deductible and costs that lead to your out-of-pocket maximum.

Deductible: The amount you must pay in addition to your premium before insurance coverage or different coinsurance or copays start. Please be aware that because of the Affordable Care Act, most preventative services, such as your yearly wellness physical, well woman examinations, mammograms or cancer screenings, must be provided for free.

In-network: Health care providers and facilities who have contracted with your insurance company. They have agreed to be paid by your insurance company and will accept your copay or coinsurance, if necessary, as part of the payment.

Out-of-network: Health care providers or facilities who have not contracted with your insurance company. You will be expected to pay all or part of the bill, depending on your insurance company's policies. If you have health insurance and decided to go to an out-of-network provider, it is very important that you find out how much the service will cost. Also, some health insurance companies do cover some services from out-of-network providers but will only pay them what they would have paid them if they were in network. The No Surprises Act provides protections in emergency cases or when you had every reason to believe your provider was in network. It is important to confirm your health care provider is in network or confirm the amount that you will be expected to pay if you opt to go to an out-of-network provider.

Premium: The amount you pay usually monthly or quarterly for your health insurance plan.


Deborah Darcy

Deborah Darcy is the senior director of government relations at the American Kidney Fund.