A new rule makes it impossible for patients with end-stage renal disease (ESRD) to take part in Medicare Advantage, leaving them out of coordinated care.
For years, our nation’s policymakers and elected officials have focused tremendous efforts toward transforming health care into a value-based system, one that tackles health disparities through coordinated care services. In fact, CMS Administrator Seema Verma recently found Medicare’s fee-for-service system “insufficient” and called for increased urgency to create a system that focuses on the total person and the social risk factors that impact care.
So, when government agencies like CMS that manage our nation’s Medicare program roll out policies that contradict these sentiments—as well as years of concerted efforts—it’s befuddling, to say the least.
That’s exactly what’s happened recently when CMS announced a decision that effectively invalidates legislation and years of work to improve both the health and health outcomes of one of the nation’s most vulnerable patient populations: those living with End-Stage Renal Disease (ESRD). It’s a decision so alarming that the Dialysis Patient Citizens (DPC) filed a lawsuit against Verma, HHS Secretary Alex Azar, as well as their agencies, HHS and CMS, with the hope that the courts will take action to protect patients.
For years, advocates have worked alongside lawmakers and American patients with ESRD to fight for passage of legislation to allow patients with kidney failure to enroll in Medicare Advantage (MA) plans—giving them access to health care options other than fee-for-service Medicare, often at a lower cost. This made sense, because MA plans are currently available to everyone else enrolled in Medicare. As result of these efforts, the entire kidney community was elated in 2016, when a provision within the 21st Century CURES Act made it possible for both newly diagnosed and existing ESRD patients to make the choice to enroll in in MA beginning in 2021.
But our celebration has been short-lived. The administration has circumvented Congressional intent and effectively invalidated the law with a regulation that would make participation of ESRD patients in MA plans nearly impossible.
They have done so quite creatively. Even though CMS has typically utilized what are called “time and distance” standards for MA plans, created to ensure that patients select a plan with providers near their homes, the agency exempted outpatient dialysis facilities from these listings under MA. So, ESRD patients hoping to enroll in MA will be discouraged from doing so, as they will be unable to see beforehand which, if any, outpatient facilities are close enough to deliver their necessary care.
Perhaps the most egregious part of this situation is that CMS took these actions while fully aware that kidney failure affects Black and Hispanic populations disproportionately; thus, the agency created even more obstacles for these populations in accessing local, quality care. Those with kidney failure require dialysis treatments 3 times a week, with each session typically lasting 3-4 hours. For that reason, it’s imperative that patients have access to care close to home. Research has shown that longer travel to facilities for dialysis can worsen outcomes and lead to life-threatening complications.
Although our government institutions and their leadership have continued to tout coordinated care as the answer for Americans with chronic conditions, their actions have said the opposite. With this recent decision CMS and HHS officials have, effectively, limited patient choice and left ESRD patients no option but to remain in the fee-for-service program that can cost more out-of-pocket and offer limited care coordination services. Worse yet, this decision unfairly singles out ESRD patients by eliminating time and distance limits for dialysis facilities—unraveling longstanding protections for care.
Our leaders who are tasked with safeguarding and improving health care should not be permitted to shift the burden of finding lifesaving care from providers to patients. It sends the message that something other than good care has taken priority. And it contradicts all the hard work that has been done to achieve a level playing field.
We hope, and expect, for the Court to agree and to compel HHS, CMS and their leaders to do what is right for all of the Americans—including those with kidney failure.
LaVarne A. Burton is president and CEO of the American Kidney Fund (AKF), a national nonprofit dedicated to fighting kidney disease on all fronts, from prevention through post-transplant living. She has led AKF since 2005. Previously, Burton served as executive secretary to the US Department of Health and Human Services, where she managed policy development and regulations.