American Kidney Fund Urges CMS to Protect Low-income Disabled ESRD Patients from Insurers’ Discriminatory Efforts to Shift Them to Taxpayer-funded Health Care


Comment Letter Cites CMS Responsibility to Protect Patients’ Right to Choose Insurance Plans Best for Them—Even if They Need Charitable Assistance to Pay

ROCKVILLE, Maryland (September 22, 2016)—In its response to the Centers for Medicare & Medicaid Services’ (CMS) August 18 Request for Information regarding “inappropriate steering of people eligible for Medicare and Medicaid into Marketplace plans,” the American Kidney Fund (AKF)—the nation’s leading nonprofit working on behalf of 31 million Americans with kidney disease—outlined its current and forthcoming safeguards to prevent steering by health care providers and called on CMS to prevent insurer practices that inappropriately steer privately insured patients onto taxpayer-funded health care. At the same time, AKF voiced strong support for patient education to ensure that patients can make informed choices about the health plan that best meets their needs.

The American Kidney Fund has been the safety net for U.S. dialysis patients since its founding in 1971, helping them access and pay for lifesaving dialysis and comprehensive health care. One of its programs—the Health Insurance Premium Program (HIPP), established under an Advisory Opinion from the U.S. Department of Health and Human Services in 1997—provides grants to pay health insurance premiums for low-income dialysis patients who could otherwise not afford their insurance.

Noting that it fully supports CMS efforts to ensure that patients’ coverage choices are in no way being manipulated, AKF’s comment letter points out that insurers around the country have targeted patients with ESRD to steer them off the Marketplace plans under which they are insured. AKF’s comments note that some insurers are sending letters to policyholders requiring them to sign declarations, under penalty of perjury, that they are not receiving charitable assistance to help them pay their premiums, and advising that the carrier cannot accept their payment if they have received such help.

“Some insurers have taken other actions that appear designed to direct ESRD patients to Medicare or Medicaid for primary coverage,” the comment letter adds. “Some plans offer to pay the Medicare coinsurance amounts if members will change their primary coverage to Medicare. Some plans have suggested to ESRD patients that federal law requires them to enroll in Medicare four months after an ESRD diagnosis. Such practices constitute steering and interfere with patients’ ability to freely choose the plan that is in their best interests.”

“For health insurers, charitable assistance is the new ‘pre-existing condition,’” said LaVarne A. Burton, president and chief executive officer of the American Kidney Fund. “Before the Affordable Care Act, insurers could avoid covering patients with expensive, chronic diseases—‘pre-existing conditions.’  Now that they can no longer do that, they are seeking new ways to deny sick patients coverage to improve their profits. Our comment letter urges CMS to stop this practice.”

Parallels to HIV/AIDS discrimination

AKF’s comment letter draws parallels to insurer efforts in Louisiana in 2014 to exclude patients with HIV/AIDS who received premium assistance from the Ryan H. White HIV/AIDS Program. Later that year, HHS published an interim final rule requiring insurers to accept third-party payments from the Ryan H. White Program on behalf of people living with HIV/AIDS, which, like ESRD, is a federally recognized disability.

The approach that insurers have taken with ESRD patients has clear parallels. According to AKF’s comment letter, the insurers’ approach “would cut off one or more coverage options for an entire class of low-income and disabled HIPP beneficiaries in order to preemptively curtail an unknown number of alleged specific instances of alleged misconduct.”

In its comments, AKF noted that it is conducting its own independent investigation and review, under the direction of counsel, of insurer allegations of provider steering to ensure that AKF’s mission has not been distorted by insurer or provider misconduct and to take appropriate steps if any improper conduct emerges.

Safeguards current and forthcoming

HIPP operates with the help of provider funding as expressly provided by the HHS Advisory Opinion, which concluded that the program’s design insulates AKF from precisely the supposed conflicts on which insurers purport to base their policies. AKF has operated in compliance with the spirit and the letter of the Advisory Opinion for nearly 20 years.

All contributions to HIPP are voluntary and without restrictions or conditions. Grants are provided to patients solely on the basis of their financial need, without consideration of the patient’s health status, insurer or insurance type, or health care provider. The majority of AKF’s HIPP grant recipients are enrolled in Medicare and receive AKF help to pay Medicare Part B and Medigap premiums; only about 6,400 are enrolled in Marketplace plans. For some ESRD patients, Marketplace plans offer vitally needed services at a lower cost than what may be available to them through public programs. Current law gives patients the right to make this choice, but many need charitable assistance to make it a reality.

Patients are free to change their health insurance coverage—and their health care providers—at any time, and AKF will continue to help them so long as they remain financially eligible for assistance.

Many dialysis providers with patients being assisted by AKF programs do not contribute to AKF. Providers who do contribute to HIPP may not “earmark” contributions to specific patients within the HIPP pool. There is no guarantee that patients referred to AKF by HIPP donors will receive assistance.

AKF noted in the comment letter that it has developed, and is developing, additional procedures to promote informed patient choice and to mitigate any potential inappropriate steering:

  • Its patient guidebook, written in plain language, contains important information about the program and clarifies patients’ freedom to choose their own providers and the insurance plan(s) that best meet their needs.
  • A new section on “Patients’ Rights and Responsibilities” will inform patients in more detail of their rights to select the insurance plan(s) that best suit their needs and explain the patient’s role in selecting insurance.
  • AKF will require providers to furnish patients with these documents before their grant is approved. The patient consent form will verify that the patient has received these materials and understands their content.
  • AKF is developing a “Provider Code of Conduct” which will set forth standards of conduct, including pro-patient choice and anti-steering provisions, for all dialysis professionals who refer patients to the HIPP program.

“Our HIPP program is a vital lifeline to some of the nation’s most vulnerable patients,” Burton said. “Without HIPP, choice of insurance is effectively removed for far too many low-income ESRD patients who could not otherwise afford their insurance premium payments or other cost-sharing obligations. We call on CMS to do the right thing for these patients.”

The full text of AKF’s comment letter, along with other information on the third-party payment issue, can be found at

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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