Patient rights, third-party payments and the CMS Request for Information


Statement from LaVarne A. Burton, American Kidney Fund President and Chief Executive Officer

ROCKVILLE, Maryland (August 19, 2016) -- The August 18 Request for Information from CMS with regard to possible inappropriate efforts by providers of dialysis services to steer patients eligible for Medicare and Medicaid into marketplace insurance plans paid for by third parties raises two critically important but distinct issues:

  • First is the legitimate concern expressed by CMS of possible inappropriate steering of patients into insurance marketplace plans. We believe it should always be the patients’ choice to select the insurance plans that best meet their health care needs—and patients need to be fully aware of the pros and cons of each insurance option.
  • But second, it is critically important to emphasize that people with disabilities in general—and with end-stage renal disease (ESRD) in particular—should not be broadly excluded as a class from the insurance marketplace if they are unable to afford their health insurance premiums.

We agree with CMS that everything that can be done, should be done to prevent steering. But we do not agree that charitable assistance for the payment of insurance premiums is the problem—many low-income, chronically ill patients (many of whom are disabled) depend on charities to help pay for many of their expenses, including health care expenses. Cutting off this assistance at the behest of insurers would be particularly callous and would harm some of our nation’s most vulnerable people.

For 45 years, the American Kidney Fund (AKF) has provided charitable assistance to low-income dialysis patients to help them pay health care costs, including the insurance they need to access lifesaving care: Medicare Part B, Medigap, commercial, COBRA, employer group health and, since the passage of the Affordable Care Act, insurance marketplace policies, though they represent a small fraction of our patient assistance—just 6,400 of the nearly 80,000 people we currently help.

CMS has made very clear in the past that ESRD patients who are eligible for Medicare may enroll in the Marketplace, so long as they choose not to enroll in Medicare. When CMS provided this option for ESRD patients to enroll in the Marketplace, its intent could not have been to effectively exclude any ESRD patients who could not personally afford the cost of premiums. Even with subsidies, premiums can be prohibitively expensive for the population we serve—a population that is overwhelmingly unable to work because of their medical condition. AKF has always been a safety net for our nation’s low-income dialysis patients, and under the ACA, our premium assistance makes Marketplace plans an option for low-income ESRD patients who are fighting for their lives. 

Some have asked why an ESRD patient who is eligible for Medicare would choose a Marketplace plan in the first place. Choice of insurance is a personal matter, but the reasons are many. First and foremost, Medicare alone is not enough to cover medical costs for people living with ESRD. A supplemental plan is necessary to cover the 20 percent out-of-pocket costs that have no lifetime cap under Medicare. In about half the states, insurers are not required to offer Medigap to ESRD patients under age 65, and ESRD patients in all states are prohibited by law from enrolling in Medicare Advantage plans which provide comprehensive coverage. For these patients, a Marketplace plan may very well be the best option to cap out-of-pocket costs and to achieve effective coordination of care. In other cases, even if Medigap is available, a patient may choose a Marketplace plan because Medicare does not offer family coverage, or because the person seeks better access to transplantation, or because the physician network offered under the Marketplace allows the person to continue seeing the same doctors they saw before they became ill. The reasons are many and cannot be distilled down into a black-and-white declaration that people with ESRD belong on Medicare.

For us, the patient is always the focus, and the effect on patients is what we care about—not insurance companies or dialysis providers, and not CMS—but the people those institutions are meant to serve. All ESRD patients must have access to the care they need to stay alive. The goals of preventing steering—with which we agree—and preserving choice for low-income patients are not mutually exclusive.

For nearly 20 years we have continuously reviewed our program to ensure that our guardrails protect its integrity. That’s even more important in the changing health care landscape. We look forward to working with CMS to assess whether there is inappropriate activity and if there is, how to best bring it to a halt. At the same time, this must occur without penalizing low-income ESRD patients by cutting off their access to an insurance option that, in some cases, may be their best choice.