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The Risk
For the second Congress in a row, lawmakers have introduced a bill authored by Big Dialysis
Big Dialysis has tried for the past decade to rework federal laws to their benefit through various lawsuits. In June 2022, Big Dialysis received the ultimate "no": the Supreme Court ruled against them and in favor of existing law and employer-sponsored health plans in Marietta v. DaVita, decided 7-2. Just a few weeks later, the dialysis companies partnered with lawmakers to introduce H.R. 8594, the Restore Protections for Dialysis Patients Act. This POLITICO article explains the clear connections between Big Dialysis and the legislation.
The measure didn't advance in 2022, but that didn't stop Big Dialysis from trying again. At the end of 2023, lawmakers introduced H.R. 6860. H.R. 6860 takes a different approach than H.R. 8594 did, but it has the same affect of preempting ERISA and tilting the market to favor Big Dialysis at the expense of employer plans and their members. By inserting a new preamble, H.R. 6860 aims to rewrite the Medicare Secondary Payer Act ("MSPA") to say that “singling out dialysis services for disfavored treatment through coverage limitations as compared to other covered health services” is inappropriate.
But preempting ERISA and mandating preferential reimbursement coverage for some illnesses over others has never been the point of the MSPA. The MSPA was designed to govern the interplay of Medicare and private health insurance, not to address differentiation between diseases (e.g., kidney failure versus lung cancer) but to address differentiation between patients (i.e., Medicare and non-Medicare beneficiaries).
By saying that a plan cannot “directly or indirectly” differentiate between all recipients of dialysis services compared to all other covered services, H.R. 6860 would run counter to ERISA and create an unworkable mandate that employer plans treat plastic surgery, kidney disease, dermatology, and cardiac benefits all the "same." This erodes the very core responsibility of ERISA and inserts Congress directly into the private insurance market for the benefit of Big Dialysis. H.R. 6860 is a significant rewrite of the MSPA to the detriment of plans, employers, and patients.
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