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Judge Blocks CMS Rule on Premium Assistance for Kidney Patients


Davita, the largest dialysis provider in the country, said the matter is not resolved and urged the Trump administration to take action.

A federal judge on Wednesday blocked a CMS rule change that would have barred patients with end-stage renal disease (ESRD) from getting charitable help to pay for private health coverage.

CMS had sought to add steps for kidney patients who seek premium assistance after a high number of them ended up on the Affordable Care Act (ACA) exchanges, raising costs for health plans that participate. The cost of ESRD, which requires patients to be on dialysis, is so high that most patients are automatically eligible for Medicare.

With the advent of the ACA, major nationwide dialysis centers had created foundations to pay premiums for these patients, allowing them to charge health plans up to $200,000 a year per patient. Medicare, by contrast, pays about $100,000 a year.

Judge Amos L. Mazzant III, sitting in the US District in Eastern Texas, issued a preliminary injunction on the CMS interim final rule, originally set to take effect January 13, 2017. The order bars HHS from implementing the rule. He agreed with the complaint from Dialysis Patient Citizens (DPC) as well as major providers including Davita, that the CMS rule singled out ESRD patients, while those with other costly conditions had no special rules for seeking help to fund private coverage.

Mazzant found that HHS had “failed to consider the benefits of private qualified health plans and ignored the disadvantages of the rule.”

CMS did not technically bar ESRD patients from getting help with premiums, but it required full disclosure of assistance to facilities and to insurers, many of whom will not cover enrollees if a third party pays for coverage. Besides the high costs for insurers, CMS cited testimony from social workers that third-party help for insurance coverage often ended once a patient received a kidney transplant, and that patients were then left to figure out how to cover aftercare.

DPC applauded the decision in a statement. “The court went beyond invalidating the rule on procedural grounds and questioned the policy itself,” the group said. The statement quoted the opinion, saying, “Congress has long recognized the importance of dialysis treatment for ESRD patients and has afforded patients the opportunity to elect coverage that best suits their needs.”

The court cited gaps that the CMS rule did not address, such as what happens to ESRD patients not eligible for Medicare, and what happens to family members, since Medicare will only cover the kidney failure patient, not the rest. Also, the court found that CMS rushed the rule into effect without adequate notice and comment.

Davita, in its own statement, said kidney failure patients remain at risk and urged the Trump administration to resolve the matter for good.

“We ask the new administration and CMS to not only eliminate this rule, but to take action to prevent insurance companies from discriminating against a vulnerable group of patients and ensure continued access to charitable premium assistance that has served as an essential patient safety net for the last 20 years.”

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