Contributor: Congress Must Fix Patient Protection Statute Upended by Supreme Court

Unless Congress acts, a misguided decision by the Supreme Court earlier this year could have devastating consequences for patients with chronic kidney disease (CKD) and their families nationwide. As is all too often the case in health care policy, the impact would be disproportionately felt by patients and communities of color.

CKD affects more than 1 in 7 adults nationwide—an estimated 37 Americans—yet it is far more prevalent among Black, Hispanic, Native American, and other communities of color. That is due to the higher incidence of underlying illnesses that can lead to CKD among these groups, including conditions like high blood pressure and diabetes—two of the most common causes of kidney failure.

According to the data, when compared to their white counterparts, Black Americans are 3.4 times more likely to develop kidney failure due to CKD, Native Americans are 1.9 times more likely, Hispanic Americans are 1.5 times more likely, and Asian Americans are 1.3 times more likely. Sadly, this can be attributed to the lack of access to primary and preventative healthcare that can help identify and diagnose CKD early on. Shockingly, 9 out of 10 people with kidney disease were unaware they have it.

Clearly this is an issue of great concern for all Americans, but particularly for patients and communities of color, and it is important that we protect policies that support access and choice. Unfortunately, a Supreme Court ruling from this past summer has the potential to completely upended insurance protections for patients with kidney diseases that have been in place for 40 years. Unless Congress passes legislation to reinstate these protections and ensure they remain in place for the long term, this ruling could threaten to limit access to care and choice for vulnerable patients and their families.

To fully grasp how the Supreme Court’s decision impacts patients with CKD and, in particular, those with end stage renal disease (ESRD, aka kidney failure), it helps to understand the history of the Medicare Secondary Payer (MSP) Act. This longstanding statute was put in place by Congress in the 1980s; it essentially protected patients with ESRD from private insurance plans imposing policies that would deny or limit coverage of kidney dialysis—the lifesaving treatment that CKD and ESRD patients rely on.

Under the MSP, patients with kidney failure—as well as their families if they are the primary plan holder—were assured the right to remain on their private insurance for a period of up to 30 months, with Medicare acting as secondary insurance. After this 30-month period, patients were given the option to make Medicare their primary insurance, with the private marketplace then becoming secondary. These protections were vital to ensuring patients with kidney disease would not have their benefits denied, delayed, or limited by private insurers.

Now, however, the Supreme Court has weakened this longstanding patient protection and has essentially created a new workaround that allows private insurance companies to uniquely target these patients by denying or severely limiting kidney benefits, including dialysis, for patients with kidney disease or failure, forcing them into Medicare far sooner than the 30 months that had previously been established under the MSP. Unfortunately, that can often result in patients losing coverage of certain benefits or being subject to higher out-of-pocket costs.

The Supreme Court’s decision has handed a major win to Big Insurance at the expense of access to care and choice for millions of Americans. As Justice Elena Kagan said in a dissenting opinion: “Now Congress will have to fix a statute this Court has broken.” Fortunately, there do seem to be lawmakers in Congress—from both parties and in both chambers—that seem up to the challenge.

If passed, the recently introduced Restore Protections for Dialysis Patients Act (HR 8594 in the House and S 4750 in the Senate) would amend title XVIII of the Social Security Act to clarify and codify the protections under the MSP that Americans with kidney disease have had for four decades prior to the Supreme Court’s harmful ruling. Contrary to misinformation being spread about the bill, it would not create any new mandates, but simply ensure Congress’s original intent with MSP is upheld.

Patient advocate groups and minority-led health organizations—including the Black Women’s Health Imperative, National Alliance for Hispanic Health, National Association for the Advancement of Colored People, National Hispanic Medical Association, and many others—are rallying behind this legislation, and calling on Congress to include it as part of a must-pass spending bill.

Given the devastating impact to patient access and choice that could threaten the health and safety of millions of vulnerable Americans, particularly patients and communities of color, it is my hope that our leaders in Congress will come together in the spirit of bipartisanship to pass the Restore Protections for Dialysis Patients Act and ensure large, private insurance companies are not given license to discriminate against Americans with kidney failure. 

Dr. Julianne Malveaux, PhD, is an economist, author and dean of the College of Ethnic Studies at California State University Los Angeles.