Amicus Curiae Brief — Marietta Memorial Hospital Employee Health Benefit Plan, et al., Petitioners v. DaVita Inc., et al.
Supreme Court briefJan 26, 2022
Ask Donna
What actually matters in this document.
Text
No. 20-1641
In the Supreme Court of the United States
___________
MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH
BENEFIT PLAN, ET AL.,
Petitioners,
v.
DAVITA INC., ET AL.,
___________
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
___________
BRIEF OF THE NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE
AS AMICUS CURIAE IN SUPPORT OF
RESPONDENTS
___________
GABRIELA ILLA
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603
(312) 853-7000
CARTER G. PHILLIPS*
KWAKU A. AKOWUAH
CHRISTOPHER A. EISWERTH
MICHELE L. ARONSON
LAKEISHA F. MAYS
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-8000
cphillips@sidley.com
[additional counsel on inside cover]
Counsel for Amicus Curiae
January 26, 2022
* Counsel of Record
ALEXANDRA T. MUSHKA✝
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-8000
✝ Admitted in California but not to D.C. Bar
Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................
ii
INTEREST OF AMICUS CURIAE .....................
1
SUMMARY OF ARGUMENT .............................
5
ARGUMENT ........................................................
9
THE MSPA PROTECTS ESRD PATIENTS BY
PROHIBITING HEALTH CARE PLANS
FROM DISCRIMINATING AGAINST THEM,
AS PETITIONERS ARE ALLEGED TO HAVE
DONE ................................................................
10
1. End Stage Renal Disease .........................
10
2. Congress Intended to Protect ESRD
Patients from Discrimination ..................
15
3. Petitioners’ Actions Allegedly Violate the
MSPA’s Protections for ESRD Patients ..
17
4. Adopting Petitioners’ Position Will
Dramatically Harm ESRD Patients ........
20
CONCLUSION ....................................................
25
ii
TABLE OF AUTHORITIES
CASE
Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263 (1993) ...................................
Page
18
STATUTES
Pub. L. No. 92–603, 86 Stat. 1429 (1972) .... 6, 14
Pub. L. No. 97-35, 95 Stat. 357 (1981).........
15
Pub. L. No. 98-369, 98 Stat. 494 (1984).......
15
Pub. L. No. 99-509, 100 Stat. 1874 (1986) ...
15
Pub. L. No. 101-239, 103 Stat. 2106 (1989) .
15
42 U.S.C. § 1395a(b)(6)(a) ............................
21
§ 1395y(a)(12) ...............................
20
§ 1395y(b).................................... 6, 7, 16
LEGISLATIVE MATERIALS
S. Rep. No. 92-1230 (1972) ...........................
S. Rep. No. 97-139 (1981) .............................
Suzanne M. Kirchhoff, Cong. Rsch. Serv.,
R45290, Medicare Coverage of End-Stage
Renal Disease (ESRD) (Aug. 16, 2018) .....
14
15
11
OTHER AUTHORITIES
Am. Kidney Fund, Life After Transplant,
https://www.kidneyfund.org/kidneydisease/kidney-failure/treatment-ofkidney-failure/kidney-transplant/lifeafter-transplant/#:~:text=Avoid%
20being%20around%20people%20who,su
ch%20as%20walking%2C%20or%20bikin
g (last visited Jan. 25, 2022) .....................
6
iii
TABLE OF AUTHORITIES—continued
Page
Am. Kidney Fund, Stages of Chronic Kidney
Disease, https://www.kidneyfund.org/
kidney-disease/chronic-kidney-diseaseckd/stages-of-chronic-kidney-disease/
(last updated Sept. 15, 2021) ....................
9
Michelle Andrews, Kaiser Family Found.,
Retirees Can Find Insuring Young Adult
Children Difficult, (Nov. 23, 2010),
https://khn.org/news/ michelle-andrewson-medicare-and-adult-children/ ..............
21
CDC, Chronic Kidney Disease in the United
States, 2021, https://www.cdc.gov/
kidneydisease/publicationsresources/CKD-national-facts.html (last
updated Mar. 4, 2021) ......................
9, 10, 11
Cleveland Clinic, Dialysis, https://my.clevel
andclinic.org/health/treatments/14618dialysis (last updated Aug. 18, 2021) .......
12
Ctrs. for Medicare & Medicaid Servs.,
Chronic Kidney Disease Disparities:
Educational Guide for Primary Care,
(Apr.
2021), https://www.cms.gov/files/
document/chronic-kidney-diseasedisparities-educational-guide-primarycare.pdf ......................................................
22
Ctrs. for Medicare & Medicaid Servs.,
Medicare Dental Coverage, https://www.
cms.gov/Medicare/Coverage/MedicareDen
talCoverage (last updated Dec. 1, 2021) ..
20
iv
TABLE OF AUTHORITIES—continued
Laura Fabuel, Dental Management in
Transplant Patients (Nov. 21, 2010),
http://www.medicinaoral.com/odo/volume
nes/v3i1/jcedv3i1p43.pdf ...........................
M. Kaballo et al., A Comparative Analysis of
Survival of Patients on Dialysis and After
Kidney Transplantation, 11 Clin. Kidney
J. 389 (2017) ..............................................
D. Keith et al., Insurance Type and Minority
Status Associated with Large Disparities
in Prelisting Dialysis among Candidates
for Kidney Transplantation. 3 Clin. J.
Am. Soc. Nephrol. 463 (2008) ...................
Jiacong Luo et al., DaVita Clinical Rsch.,
The Impact of Employment Status or
Insurance Type on Outcomes Among
Patients with End-Stage Renal Disease
(2017), http://www.davitaclinicalresearch
.com/wp-content/uploads/2017/10/ROPS_
WorkIns_POST_2017-10-28a_FINAL.pdf
................................................................ …
M. MacDorman et al., Racial and Ethnic
Disparities in Maternal Mortality in the
United States Using Enhanced Vital
Records, 2016-2017, 111 Am. J. Pub.
Health 1673 (2021), https://ajph.
aphapublications.org/doi/epdf/10.2105/AJ
PH.2021.306375 ........................................
NAACP, 2019 Resolutions,
https://naacp.org/resources/2019-naacpresolutions .................................................
Page
20
14
11
12
2
2
v
TABLE OF AUTHORITIES—continued
Page
Nat’l Inst. of Diabetes & Digestive & Kidney
Diseases, What Is Chronic Kidney
Disease? (June 2017), https://www.niddk.
nih.gov/health-information/kidneydisease/chronic-kidney-disease-ckd/whatis-chronic-kidney-disease .......................... 10, 13
Nat’l Inst. of Diabetes & Digestive & Kidney
Diseases, What Is Kidney Failure?,
https://www.niddk.nih.gov/healthinformation/kidney-disease/kidneyfailure/what-is-kidney-failure (last
updated Jan. 2018)................................... 10, 14
Nat’l Kidney Found., Hemodialysis (2015),.
https://www.kidney.org/atoz/content/hem
odialysis .....................................................
6
Nat’l Kidney Found., Travel Tips: A Guide
for Kidney Patients, https://www.kidney.
org/atoz/content/traveltip#:~:text=Yes%2
C%20most%20patients%20who%20receiv
e,the%20patient's%20health%20is%20sta
ble (last visited Jan. 25, 2022) ..................
13
Yue-Harn Ng et al., Does Racial Disparity y
in Kidney Transplant Waitlisting Persist
After Accounting for Social Determinants
of Health?, 104 Transplantation 1445
(2020) .........................................................
11
N. O’Connor, Survival After Dialysis
Discontinuation and Hospital Enrollment
for ESRD, 8 Clin. J. Am. Soc. Nephrol.
2117 (2013), https://cjasn.asnjournals.org
/content/8/12/2117117 ..............................
5
vi
TABLE OF AUTHORITIES—continued
Page
Charlotte Paddison et al., Experiences of
Care Among Medicare Beneficiaries With
ESRD: Medicare Consumer Assessment
of Healthcare Providers and Systems
(CAHPS) Survey Results, 61 Am. J.
Kidney Diseases 440 (Mar. 1, 2013),
https://www.ajkd.org/article/S02726386(12)01329-7/fulltext ...........................
22
R. Thebault et al., The Coronavirus Is
Infecting and Killing Black Americans at
an Alarmingly High Rate, Wash. Post
(Apr. 7, 2020) .............................................
2
C. Thomas, Nat’l Kidney Found., Is It Time
to Visit the Dentist? (July 1, 2015),
https://www.kidney.org/content/it-timevisit-dentist ...............................................
20
UC Davis Health, Transplant Ctr., The
Evaluation Process, https://health.
ucdavis.edu/transplant/about/theevaluation-process.html (last visited Jan.
25, 2022) .................................................... 6, 11
UC San Francisco, The Kidney Project:
Statistics
(Nov.
19,
2019),
https://pharm.ucsf.edu/kidney/need/statis
tics..............................................................
13
U.S. Renal Data Sys., Nat’l Inst. of Diabetes
& Digestive & Kidney Diseases, 2021
Annual Data Report: Epidemiology of
Kidney Disease in the United States,
(2021), https://adr.usrds.org/2021/endstage-renal-disease/1-incidenceprevalence-patient-characteristics-andtreatment-modalities ............................ 1, 2, 12
1
INTEREST OF AMICUS CURIAE1
The National Association for the Advancement of
Colored People (“NAACP”) is the nation’s oldest and
largest civil rights organization. It was founded in
1909 when eruptions of anti-Black violence,
particularly lynchings, were horrifically commonplace.
The principal objectives of the NAACP are to ensure
the political, educational, social, and economic
equality of rights, including seeking the enactment
and enforcement of federal, state, and local laws
securing civil rights.
The NAACP’s interest in this case stems from its
work related to the health of Black families, which has
never been more urgent. The NAACP works to create
and maintain an inclusive culture of healthy people
and communities with emphases on healthy diet,
vaccinations, and preventative care. It collaborates
with communities to improve the social determinants
of health—racism, poverty, exclusion, inferior schools,
unsafe
housing,
poor
nutrition,
and
toxic
environments.
Among other points of emphasis, the NAACP has
focused on kidney failure or end stage renal disease
(“ESRD”), a
devastating
illness
that
disproportionately affects communities and families of
color. Black Americans are nearly four times as likely
to develop ESRD than Whites. U.S. Renal Data Sys.,
Nat’l Inst. of Diabetes & Digestive & Kidney Diseases,
1 The parties have consented to the filing of this brief. Under
Rule 37.6 of the Rules of this Court, amicus states that no counsel
for a party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
amicus or its counsel made a monetary contribution to its
preparation or submission.
2
2021 Annual Data Report: Epidemiology of Kidney
Disease in the United States, fig. 1.8 (2021) (“USRDS
Annual
Report”),
https://adr.usrds.org/2021/endstage-renal-disease/1-incidence-prevalence-patientcharacteristics-and-treatment-modalities.
Hispanic
Americans are approximately twice as likely. Id.
However, Black and Hispanic Americans are far less
likely to receive a kidney transplant or even pre-ESRD
care. Id. at figs. 1.10, 1.11. These disparities are
longstanding, id. at fig. 1.8, and mirror broader
inequities in the American health care system. See,
e.g., R. Thebault et al., The Coronavirus Is Infecting
and Killing Black Americans at an Alarmingly High
Rate, Wash. Post (Apr. 7, 2020), https://www.washing
tonpost.com/nation/2020/04/07/coronavirus-isinfecting-killing-black-americans-an-alarmingly-highrate-post-analysis
shows/?arc404=true;
M.
MacDorman et al., Racial and Ethnic Disparities in
Maternal Mortality in the United States Using
Enhanced Vital Records, 2016-2017, 111 Am. J. Pub.
Health 1673, 1676 (2021).
The NAACP has launched a series of town hall
events in communities across the country to improve
knowledge about kidney disease and dialysis
treatment options. In 2019, the NAACP passed a
resolution demanding greater equity in treatment for
kidney disease and ESRD.
See NAACP, 2019
Resolutions, https://naacp.org/resources/2019-naacpresolutions. And in recent years, it has engaged with
the federal government to prevent private health care
plans, like Petitioners’, from designing terms to force
ESRD patients to enroll in Medicare prematurely.
According to the allegations of the complaint,
Petitioners refused to provide in-network dialysis
services and “single[d] out dialysis services for ...
reimbursement limitations,” JA13, specifically by
3
reimbursing dialysis treatment and dialysis-related
drugs at abnormally low rates. JA13-15. That
“differential treatment of dialysis patients directly and
severely impacted Patient A” by causing Patient A to
drop coverage under Petitioners’ plan and enroll in
Medicare before the 30-month coordination-of-care
period was over. JA14-15. If other plans take similar
actions, which they will unless the decision below is
affirmed, then many ESRD patients will quickly be
pushed off their private coverage and a wide range of
individuals who receive an ESRD diagnosis will be
drastically affected. As a result, ESRD patients and
their families will suffer the very harms that Congress
meant to avoid when it established and expanded the
now 30-month coordination period, in which patients
are entitled to retain their existing health plans as the
primary source of coverage. This brief focuses on three
key sources of harm:
ESRD patients would become less
suitable
candidates
for
kidney
transplants. Although dialysis preserves the
lives of ESRD patients in the short-term, it is
no panacea. Only a transplant can provide
enduring relief from the ravages of kidney
failure. In part because there are persistent
shortages
of
transplantable
kidneys,
transplant eligibility is also closely restricted.
One factor considered for transplant eligibility
is the candidate’s insurance status and,
specifically, access to dental care. Because
Medicare does not cover certain important
health services (such as dental care) that are
essential to maintaining eligibility for a
kidney transplant, Petitioners’ approach
would make fewer ESRD patients eligible for
a potentially life-saving transplant.
4
Many families would lose employerbased health insurance. Medicare covers
individuals only. It does not provide coverage
to the families of Medicare beneficiaries. So,
if an ESRD patient is pushed off a private plan
and onto Medicare, the patient’s family will
lose eligibility for the private plan without
gaining any substitute coverage under
Medicare.
ESRD patients will suffer disruption in
their longstanding network of physicians
as they are shunted from one insurance
system to another without the transition
period that Congress intended. ESRD
patients typically suffer from other significant
health conditions that require continuous care
to avoid serious and sometimes irreversible
impairment to health.
The 30-month
coordination period gives patients time to
transition their care to new providers if their
private plan providers do not take Medicare.
Petitioners’ approach would cut against
Congress’s wise plan, instead pressing ESRD
patients to move prematurely to Medicare.
Congress meant to spare ESRD patients from all of
this when it established special measures to provide
for their care through a combination of private and
public insurance. Because ESRD is a devastating
illness, and because Black Americans and other
communities of color are significantly overrepresented
among those suffering from ESRD, the NAACP has a
strong interest in ensuring that statutory protection
for ESRD patients is preserved to the full measure
that Congress intended. The NAACP accordingly
urges the Court to affirm the judgment below.
5
SUMMARY OF ARGUMENT
This Court has received briefs from Petitioner and
its amici (including the United States) that discuss the
implications of the Court’s decision for the parties’
finances, for the Medicare Trust Fund, for the health
care system more broadly, and for certain legal
doctrines.
Largely missing from the picture painted by these
briefs is what the Court’s decision in this case will
mean for the lives and health of ESRD patients and
their families. The brief for the United States is a case
in point. It describes the policy ramifications of
Petitioners’ plan as “troubling,” United States Br. at
15, but appears to limit its concern to the cost
implications for the Medicare Trust, id. at 23. But
make no mistake: Patients suffering from ESRD have
an enormous stake in the outcome of this case.
Petitioners’ position, if adopted, will have a potentially
catastrophic impact on large numbers of ESRD
patients, particularly patients of color.
ESRD is the final stage of chronic kidney disease.
When patients reach this point, their kidneys no
longer function, meaning, most importantly, that they
have stopped filtering waste from the blood. This
waste builds up and becomes toxic. Without a kidney
transplant or dialysis, these patients will not survive
more than a few weeks. N. O’Connor, Survival After
Dialysis Discontinuation and Hospital Enrollment for
ESRD, 8 Clin. J. Am. Soc. Nephrol. 2117, 2118 (2013),
https://cjasn.asnjournals.org/content/8/12/2117.
Both transplant and dialysis require significant
changes in lifestyle and wraparound health care
services. To be eligible for a transplant, a patient must
demonstrate acceptable cardiovascular, liver, lung,
urinary tract, and dental health, adequate insurance
6
coverage, and a stable home environment. UC Davis
Health, Transplant Ctr., The Evaluation Process,
https://health.ucdavis.edu/transplant/about/theevaluation-process.html (last visited Jan. 25, 2022).
For a transplant to succeed, patients must adapt to
new dietary, medication, and mental health regimes.
Am.
Kidney
Fund, Life After Transplant,
https://www.kidneyfund.org/kidney-disease/kidneyfailure/treatment-of-kidney-failure/kidneytransplant/life-after-transplant/#:~:text=Avoid%20
being%20around%20people%20who,such%20as%20w
alking%2C%20or%20biking (last visited Jan. 25,
2022).
Most ESRD patients, however, must learn to live on
dialysis—either as an interim measure while waiting
for a transplant, or in many cases, as the sustaining
treatment for the rest of their lives. For the vast
majority, that means traveling to an outpatient
dialysis center three times per week. Upon arriving at
the center, patients typically endure a four-hour
dialysis session, during which their arm or leg is
connected via tubes to an artificial kidney, and their
blood is filtered and cleaned. Nat’l Kidney Found.,
Hemodialysis (2015), https://www.kidney.org/atoz/
content/hemodialysis. Additional time is spent
traveling to and from the dialysis center, getting
connected to the machine, and stopping any bleeding
afterward. And still more time is spent visiting the
other physicians who care for the large number of
other health complications that accompany ESRD.
By expanding Medicare to cover ESRD patients
regardless of age, Pub. L. No. 92–603, § 299I, 86 Stat.
1429, 1463–64 (1972), and enacting the Medicare
Secondary Payer statute, 42 U.S.C. § 1395y(b)
(“MSPA”), Congress sought to further two critical
goals. First, Congress sought to protect the Medicare
7
Trust Fund from bearing a disproportionate share of
the extraordinary costs of treating ESRD. Second,
however, Congress plainly meant to serve the health
interest of ESRD patients by guaranteeing the
availability of dialysis and transplant care. These
goals are mutually reinforcing. By ensuring that plans
do not discriminate against ESRD patients, see id.
§ 1395y(b)(1)(C), they allow those patients to receive
the most comprehensive and consistent care, thus
preserving life and health while also protecting the
public fisc.
As the Court below (App. 41-54) and Respondents
(at 31-32, 43-44) have well explained, the MSPA does
not permit health care plans to take actions that are
designed to and will drive ESRD patients from their
private plans to Medicare. Yet that is precisely what
Petitioners have allegedly done, and the court of
appeals was correct to hold that Respondents had
stated viable claims based on the text of the MSPA.
This Court need go no further to affirm the judgment
below, as the NAACP urges it to do.
The Court should also affirm because only an
affirmance is consistent with Congress’s policy
judgment. As we demonstrate below, Petitioners’
position could have catastrophic consequences for
ESRD patients and their families. Private plans
frequently offer benefits, not available from Medicare,
that are necessary to obtain a transplant. For
example, at this point, Medicare does not cover dental
treatment (except in certain extreme circumstances
where the dental treatment requires hospitalization),
even though transplant applicants must demonstrate
that they do not have untreated cavities that may
cause infection and rejection of a donated kidney. In
addition, if ESRD patients are forced to leave their
private insurance plans for Medicare, many families
8
will lose the benefit of employer-provided coverage.
Medicare protects individuals, not families. And even
if there is no drop in coverage for ESRD patients, there
will generally be a shift in providers as Medicare and
private networks do not line up perfectly. As a result,
ESRD patients already coping with significant life
changes will be forced to identify and develop new
relationships with new physicians for life-saving care.
All of these negative consequences are avoidable.
The Court need only adopt the straightforward textual
reading of the MSPA advanced by Respondents. The
Court should do so, and should affirm.
9
ARGUMENT
THE MSPA PROTECTS ESRD PATIENTS BY
PROHIBITING HEALTH CARE PLANS FROM
DISCRIMINATING AGAINST THEM, AS
PETITIONERS ARE ALLEGED TO HAVE DONE
Dialysis is a medical miracle—allowing ESRD
patients to continue living as a machine filters their
blood like a functioning kidney would. It is also
incredibly expensive. Congress has passed a series of
statutes that guarantee coverage for this life-saving
care, allocate costs between private plans and
Medicare, and, importantly, ensure that ESRD
patients, who are critically ill, can remain on private
plans for a significant period of time after diagnosis (30
months), thus avoiding disruption in their care and in
their family’s coverage. The Petitioners’ plan allegedly
frustrates this carefully balanced structure by
intentionally making it intolerable for ESRD patients
to remain on the plan. Petitioners’ key defense is that
the plan’s relevant provisions are also intolerable for
the narrow set of individuals who need dialysis but do
not have ESRD. The Court should reject that defense,
and should affirm.
1. End Stage Renal Disease.
Approximately 37 million people in the United
States—one out of every seven—suffer from chronic
kidney disease (“CKD”). See CDC, Chronic Kidney
Disease in the United States, 2021 at 1,
https://www.cdc.gov/kidneydisease/publicationsresources/ckd-national-facts.html (last updated Mar.
4, 2021). CKD can range from Stage 1 (where a
patient’s kidneys are essentially functioning at 90
percent or greater) to Stage 5 or ESRD (where a
patient’s kidneys are functioning at less than 15
percent). Am. Kidney Fund, Stages of Chronic Kidney
10
Disease, https://www.kidneyfund.org/kidney-disease/
chronic-kidney-disease-ckd/stages-of-chronic-kidneydisease/ (last updated Sept. 15, 2021).
The risk of developing CKD rises as people age.
Nat’l Inst. of Diabetes & Digestive & Kidney Diseases,
What Is Chronic Kidney Disease? (June 2017),
https://www.niddk.nih.gov/healthinformation/kidney-disease/chronic-kidney-diseaseckd/what-is-chronic-kidney-disease.
In addition,
individuals with diabetes, high blood pressure, and
heart disease are more likely to develop CKD. Id. For
instance, a diabetic’s high blood glucose can damage
the kidneys’ blood vessels, and as a result, one in three
individuals with diabetes develop CKD. Id.
CKD can progress to ESRD, particularly without
proper treatment. As of 2019, there were 782,818
individuals in the country who had been diagnosed
with ESRD. USRDS Annual Report at fig. 1.5.
According to the CDC, for every two women who
develop ESRD, three men do; and Black Americans are
three times likelier to develop CKD than White
Americans. CDC, Chronic Kidney Disease in the
United States, 2021, supra, at 3.
When a person develops ESRD, their kidneys do not
function sufficiently to filter their blood and remove
wastes and extra fluid in their body. Common
symptoms include swelling, headaches, nausea, pain,
confusion, and a loss of appetite. Nat’l Inst. of
Diabetes & Digestive & Kidney Diseases, What Is
Kidney Failure?, https://www.niddk.nih.gov/healthinformation/kidney-disease/chronic-kidney-diseaseckd/what-is-chronic-kidney-disease (last updated Jan.
2018). ESRD patients—even with proper treatment—
can develop high blood pressure, heart disease,
anemia, mineral and bone disorders, and
malnutrition. Id.
11
Absent intervention, ESRD is fatal because the
human body must filter waste and excess water to
survive. There are two treatment options to avoid
death: a kidney transplant or dialysis. Among
Americans with ESRD, approximately 71% are on
dialysis and 29% are living with a kidney transplant.
CDC, Chronic Kidney Disease in the United States,
2021, supra, at 3.
Kidney transplants are the preferred treatment for
individuals with ESRD. For most people, obtaining a
kidney transplant requires registering on the
transplant waitlist. Suzanne M. Kirchhoff, Cong. Res.
Serv., Medicare Coverage of End-Stage Renal Disease
(ESRD) 4 (Aug. 16, 2018) (“CRS Report”). Getting on
the waitlist, however, requires a person to meet
numerous criteria, including screenings for adequate
cardiovascular, lung, liver, and ambulatory function,
for
psychosocial
status,
and
for
financial
considerations. UC Davis Health, supra. These
criteria disqualify many ESRD patients. CRS Report
at 4. And there are more than five times as many
individuals on the restrictive waitlist as kidneys
available in any particular year. Resp. Br. 4 (citing
sources).
Whether an ESRD patient has private insurance,
Medicare, or a mix of private and public insurance
impacts the likelihood of gaining a place on the waitlist
and ultimately getting a transplant. Research has
found the ESRD patients enrolled in Medicare
(without private insurance) are less likely to be
waitlisted. Yue-Harn Ng et al., Does Racial Disparity
y in Kidney Transplant Waitlisting Persist After
Accounting for Social Determinants of Health?, 104
Transplantation 1445, 1452 (2020); accord D. Keith et
al., Insurance Type and Minority Status Associated
with Large Disparities in Prelisting Dialysis among
12
Candidates for Kidney Transplantation. 3 Clin. J. Am.
Soc. Nephrol. 463, 464-65 (2008). Unsurprisingly,
research has also found that patients on private
insurance are ultimately more likely to receive a
transplant. Jiacong Luo et al., DaVita Clinical Rsch.,
The Impact of Employment Status or Insurance Type
on Outcomes Among Patients with End-Stage Renal
Disease (2017), http://www.davitaclinicalresearch.com
/wpcontent/uploads/2017/10/ROPS_WorkIns_POST_2
017-10-28a_FINAL.pdf.
Most patients living with ESRD are undergoing
dialysis. Dialysis, put most simply, is a medical
procedure during which a person’s blood is filtered and
cleaned outside the kidney. Cleveland Clinic, Dialysis,
https://my.clevelandclinic.org/health/treatments/1461
8-dialysis (last visited Jan. 25, 2022). There are two
kinds: (1) hemodialysis—where an ESRD patient’s
arm or leg is hooked up via tubes to an artificial
kidney, and (2) peritoneal dialysis—where a patient’s
blood is filtered inside their body using a catheter.
CRS Report at 5. Hemodialysis, by far, is the most
common, and most patients undergo it at an
outpatient clinic. See id. at 5; USRDS Annual Report
at fig. 1.2 (showing that in 2019, 85.1% of Americans
with ESRD underwent in-center hemodialysis).
Hemodialysis, the type of dialysis at issue here,
requires a drastic change in lifestyle. First, a person
needs to have hemodialysis at least three times a
week. Cleveland Clinic, Dialysis, supra. Each session
lasts three to five hours. Id. That time does not
include transportation to or from the outpatient clinic,
the amount of time between arriving and being
connected to the artificial kidney, or the amount of
time it takes to stop the fistula bleeding following the
filtering process. After a session, even where bleeding
is stopped easily, a person feels wiped out. Second,
13
hemodialysis requires a severe change in diet, most
significantly limiting the intake of liquid. Cleveland
Clinic, Dialysis, supra.
Third, dialysis requires
planning life events and scheduling changes around
dialysis. Patients who want to travel, for instance,
must arrange dialysis at their destination. If there is
a holiday, they have to alter their schedule to obtain
the requisite care on the outpatient center’s more
limited schedule. Nat’l Kidney Found., Travel Tips: A
Guide for Kidney Patients, https://www.kidney.org/ato
z/content/traveltip (last visited Jan. 24, 2022). Fourth,
outpatient
dialysis
is
incredibly
expensive,
particularly without adequate insurance. The cost of
providing a single dialysis treatment (for the provider,
let alone the patient) can be approximately $290.
Resp. Br. 12. ESRD patients require three treatments
per week, every week, and so annual costs for dialysis
alone reach tens of thousands of dollars per year. All
told, total annual health care expenditures for dialysis
patients are approximately $90,000. See UC San
Francisco, The Kidney Project: Statistics (Nov. 19,
2019), https://pharm.ucsf.edu/kidney/need/statistics.
While hemodialysis takes up a significant portion of
an ESRD patient’s time, it is rarely the only medical
appointment on the calendar.
ESRD patients
frequently have a host of other medical complications,
including diabetes, high blood pressure, and heart
disease. See Nat’l Inst. of Diabetes & Digestive &
Kidney Diseases, What Is Chronic Kidney Disease?
(June 2017), https://www.niddk.nih.gov/healthinformation/kidney-disease/chronic-kidney-diseaseckd/what-is-chronic-kidney-disease. An ESRD patient
requires an entire team of health care professionals,
including, in many cases, a nephrologist (a kidney
specialist), dialysis nurse (who monitors dialysis
administration), transplant coordinator (who teaches
14
what to do before and after a transplant), a renal
dietitian (who trains on food and drink intake), a
cardiovascular specialist (to monitor and treat
increased blood pressure), a podiatrist (to address
swollen feet), and a dentist (to address any cavities or
dental infections). What Is Kidney Failure?, supra.
These appointments also require coordination and
time.
Although it is possible to live on dialysis for years,
the median life expectancy of an ESRD patient
undergoing hemodialysis and without a transplant is
only 48 months. USRDS Annual Report at fig. 6.7.
And each of those months is trying, difficult, and
costly. With a successful transplant, the likelihood of
death is substantially reduced. M. Kaballo et al., A
Comparative Analysis of Survival of Patients on
Dialysis and After Kidney Transplantation, 11 Clin.
Kidney J. 389, 389-90 (2017).
2. Congress Intended to Protect
Patients from Discrimination.
ESRD
For 50 years, Congress has understood how difficult
life is for ESRD patients and sought repeatedly to offer
them increasing protection.
In the early 1970s, Congress recognized that ESRD
presents “the most tragic irony of the twentieth
century”: “We have learned how to treat [ESRD], yet
these treatments are not available to most Americans
because of their cost.” S. Rep. No. 92-1230 at 1243
(1972) (Sen. Hartke). Congress accordingly took the
unprecedented step of extending Medicare to nearly all
individuals with ESRD, regardless of age, to ensure
the availability of dialysis and transplant care. See
Pub. L. No. 92–603, § 299I, 86 Stat. 1429, 1463–64
(1972).
15
This expansion of coverage spawned some
unanticipated consequences that required additional
congressional action. Specifically, once Medicare
covered ESRD treatment (i.e., dialysis or transplant
costs), private health care plans included provisions
that denied coverage where the beneficiary was
entitled to coverage under Medicare. S. Rep. No. 97139 at 735 (1981).
In response, Congress passed the Medicare
Secondary Payer statute, Pub. L. No. 97-35, § 2146(a),
95 Stat. 357, 800-01 (1981), which “change[d] the
benefit coordination arrangements between the
Medicare End-Stage Renal Program and any other
health benefits to which an individual may be
entitled.” S. Rep. No. 97-139 at 735. The statute
created a coordination period, during which the
private insurance plan would be the primary payer for
ESRD treatment costs and Medicare would serve as
the secondary payer. This switch was designed, in
part, to save Medicare hundreds of millions of dollars.
Id. at 735-36. But in doing so, Congress was emphatic
that “[r]eimbursement for covered expenses for care of
[ESRD] patients [would] still [be] assured.” Id. at 736.
Congress accomplished these dual goals through an
iterative process. At first, Congress directed the
Internal Revenue Service to deny business tax
deductions for providing health insurance to
employees if the health insurance plan “contain[ed] a
discriminatory provision that reduces or denies
payment of benefits for renal patients.” Id. In 1984, it
created a cause of action allowing the government to
enforce the MSPA’s provisions, see Pub. L. No. 98-369,
tit. III, § 2344(a), 98 Stat. 494, 1095 (1984), and two
years later, Congress created a private right of action,
see Pub. L. No. 99-509, § 9319(b), 100 Stat. 1874, 2011
(1986). Finally, in 1989, Congress buttressed the anti-
16
discrimination provisions by prohibiting health care
plans even from “tak[ing] into account that an
individual is entitled to [Medicare] benefits [due to an
ESRD diagnosis] during the [coordination] period.”
Pub. L. No. 101-239, § 6202(b)(1)(C), 103 Stat. 2106,
2231 (1989).
At this point, these enactments boil down to two key
provisions. First, there is the anti-differentiation
provision, which states that a plan “may not
differentiate in the benefits it provides between
individuals having end stage renal disease and other
individuals covered by such plan on the basis of the
existence of end stage renal disease, the need for renal
dialysis, or in any other manner.”
42 U.S.C.
§ 1395y(b)(1)(C)(ii). Second, there is the take-intoaccount provision, which states that a plan “may not
take into account that an individual is entitled to or
eligible for [Medicare] benefits” during the
coordination period. Id. § 1395y(b)(1)(C)(i).
3. Petitioners’ Actions Allegedly Violate the
MSPA’s Protections for ESRD Patients.
The complaint alleges that Petitioners’ plan
differentiates between the benefits it provides to
ESRD patients and others and that it takes into
account patients’ ESRD diagnosis—both in violation of
42 U.S.C. § 1395y(b)(1)(C). JA26. As Respondents
explain (at 21-47), Petitioners’ actions, as alleged,
violate the plain terms of the MSPA.
Petitioners allegedly violated the antidifferentiation provision. The anti-differentiation
provision precludes a plan from “differentiat[ing] in
the benefits it provides between individuals having
[ESRD] and other individuals covered by [the] plan” in
three ways: (1) “on the basis of the existence of end
stage renal disease,” (2) “on the basis of ... the need for
17
renal dialysis,” or (3) “in any other manner.” 42 U.S.C.
§ 1395y(b)(1)(C)(ii). Collectively, these three clauses
prevent both facial and more cleverly disguised
discrimination. See Resp. Br. 22-25.
Respondents alleged that Petitioners intentionally
violated this provision by adopting plan terms
designed to shift ESRD patients off the plan’s rolls and
onto Medicare. The complaint asserted, for instance,
that Petitioner MedBen—the plan’s third-party
administrator—“touts its ability to reduce the
amounts employers spend on dialysis procedures
provided to ESRD patients.” JA7; see id. (“MedBen
states that ‘by implementing [its] proprietary dialysis
health plan language, employers can realize a
substantial savings on the procedure.”). Indeed,
MedBen purportedly claimed that one client that
amended its plan in accordance with MedBen’s advice
saw its “dialysis costs f[a]ll by 80%.” Id.; see also JA29
(“MedBen specifically emphasizes the high cost of
dialysis treatment for ESRD patients in promoting to
its customers MedBen’s proprietary (and illegal)
methods that purport to reduce costs related to
dialysis reimbursement.”).
Respondents alleged that the plan here followed
MedBen’s advice and, in doing so, violated the antidifferentiation’s second and third clauses. See JA6,
13-16. Specifically, the plan did so by capping
reimbursement on outpatient dialysis services and
dialysis drugs (but not inpatient dialysis) and imposed
a 30% coinsurance obligation on outpatient dialysis
patients. Resp. Br. 31. These terms are abnormally
unfavorable to ESRD patients, who virtually alone
depend on outpatient dialysis approximately 150
times per year, and these terms allegedly have the
effect of forcing patients, like Patient A, toward
Medicare. JA27.
18
It is not difficult to see what is happening here. The
third-party administrator allegedly advertised a
proprietary set of plan terms designed to shift ESRD
patients off private plans and onto Medicare. The plan
adopted these terms, and they had their desired effect.
This is discrimination and differentiation and unfair
treatment no matter the test. And it fits comfortably
within the second clause. It does not matter whether
Petitioners avoided using magic words or treated
shabbily a small amount of non-ESRD patients too.
Targeted and intentionally discriminatory conduct
does not become non-discriminatory when it is
calibrated to harm a few extra people. This Court has
long recognized, for example, that when an enactment
targets activities “engaged in exclusively or
predominantly by a particular class of people, an
intent to disfavor that class can readily be presumed.”
Bray v. Alexandria Women’s Health Clinic, 506 U.S.
263, 270 (1993); see id. (“[a] tax on wearing yarmulkes
is a tax on Jews”); see App. 44-45. Here, ESRD
patients are virtually the only patients who use
outpatient dialysis on a routine basis. A slate of terms
that treats outpatient dialysis users so harshly will
necessarily drive ESRD patients toward Medicare
enrollment, as Petitioners allegedly did with Patient
A. At a minimum, the case should be permitted to
advance beyond the motion to dismiss stage.
The Court need not reach potentially more complex
questions regarding whether a plaintiff could state a
valid MSPA claim without alleging bad-faith or
intentional conduct. Here, the complaint alleges that
Petitioners adopted a plan that was specifically and
intentionally designed to discriminate against
outpatient dialysis services, and those who require
such care, and further alleges that Petitioners
accomplished exactly what they set out to do: they
19
shoved ESRD patients out of their plan. That alleged
conduct violates this statute.
Petitioners allegedly violated the take-account
provision. Section 1395y(b)(1)(C)(i) precludes a plan
from “tak[ing] into account that an individual is ...
eligible for benefits” under Medicare during the
coordination period.
Respondents alleged that
Petitioners considered or took account of patients
ESRD diagnosis when they targeted outpatient
dialysis treatment for unfavorable treatment and did
so based on a motivation to “induce members of the
Plan with ESRD to drop out of the Plan and instead
enroll in Medicare.” JA29; see JA26.
For the reasons explained by Respondents (at 43-44),
these allegations are sufficient to state a claim based
on a violation of the statute’s plain text. The Court
need go no further; the decision below may be affirmed
on this ground alone.
4. Adopting
Petitioners’
Position
Dramatically Harm ESRD Patients.
Will
Affirming the court of appeals’ judgment is not only
consistent with the text of the statute, but also with
Congress’s expressed policy judgment to protect ESRD
patients. If plans are allowed to intentionally adopt
terms designed to shift ESRD patients from private
insurance to Medicare, as Petitioners are alleged to
have done here, it would cause significant damage to
patients coping with ESRD, thwarting Congress’s
effort to protect those patients (as well as the public
fisc) from the consequences of abrupt or premature
coverage changes.
The negative consequences of such a move for ESRD
patients are numerous and yet to be fully revealed.
Just three show how far-ranging and devastating they
can be for ESRD patients and their families.
20
First, forcing ESRD patients to give up their private
insurance and enroll in Medicare will in many cases
diminish patients’ ability to qualify for a kidney
transplant—which is the best long-term treatment
option for many facing kidney failure.
As described above, p. 11, supra, most people obtain
kidney transplants through the transplant waiting
list. Getting on the waitlist requires patients to meet
a rigorous set of criteria designed in part to ensure
that the recipient’s body does not reject the donor’s
kidney. Among other criteria, such as sufficient heart,
lung, and liver function, potential transplant
recipients must also show that their teeth are in good
health and that they have dental care because a cavity
could lead to an infection that could in turn cause the
body to reject the kidney. See Laura Fabuel, Dental
Management in Transplant Patients (November 21,
2010), http://www.medicinaoral.com/odo/volumenes/v
3i1/jcedv3i1p43.pdf. The risk runs the other way as
well—the immunosuppressive drugs that organ
recipients must take to reduce the odds that their body
rejects the donated kidney can also lead to severe
dental problems. C. Thomas, Nat’l Kidney Found., Is
It Time to Visit the Dentist? (July 1, 2015),
https://www.kidney.org/content/it-time-visit-dentist.
Many private insurance plans include dental
coverage for at least routine care, but Medicare does
not pay for dental treatment at all, except in the rare
circumstance where “the individual ... requires
hospitalization in connection with the provision of
[dental] services.” 42 U.S.C. § 1395y(a)(12); see also
Ctrs. for Medicare & Medicaid Servs., Medicare Dental
Coverage, https://www.cms.gov/medicare/coverage/me
21
dicaredentalcoverage (last updated Dec. 1, 2021)
(explaining scope of statutory “blanket exclusion”).2
Plans that prematurely force ESRD patients onto
Medicare before completion of the coordination period
thus create obstacles to obtaining a kidney transplant,
and in that way reduce the odds that patients suffering
from kidney failure will obtain the new kidney that
could save their lives. It means those patients must
continue receiving dialysis, further complicating their
lives and driving up costs for Medicare, in conflict with
Congress’s stated intent.
Second, forcing ESRD patients onto Medicare can
affect not only their health care but also their families’
insurance. Medicare is individual health coverage.
Under the Social Security Act, a Medicare beneficiary
is defined as “an individual who is entitled to benefits
under part A or enrolled under part B.” 42 U.S.C.
§ 1395a(b)(6)(a) (emphasis added). With very few
exceptions, Medicare does not offer dependent
coverage for a beneficiary’s family members. Michelle
Andrews, Kaiser Family Found., Retirees Can Find
Insuring Young Adult Children Difficult (Nov. 23,
2010),
https://khn.org/news/michelle-andrews-onmedicare-and-adult-children/. Thus, if a family has
health coverage through an ESRD patient’s employer,
once the ESRD patient enrolls in Medicare, the rest of
the family often loses coverage, forcing those family
members to obtain coverage by other means at likely
higher cost, at the very time where an ESRD diagnosis
and the accompanying need for constant dialysis care
2 The same site explains that Medicare will pay for “[a]n oral or
dental examination performed on an inpatient basis as part of
comprehensive workup prior to renal transplant surgery,” but
that Medicare will not cover any dental treatment that the
examination shows to be necessary.
22
are disrupting family life and diminishing the time
available for family members to work and earn income.
Third, and relatedly, changing from private
insurance to Medicare can also force a change in care
providers. ESRD patients require multidisciplinary
care. See pp. 13-14, supra. It is not enough to have a
nephrologist and a dialysis nurse; many patients also
require a transplant coordinator, a renal dietitian, a
cardiovascular physician, a podiatrist, and a dentist in
addition to other providers. And patients obviously
benefit when these myriad providers coordinate their
treatment strategies. Ctrs. for Medicare & Medicaid
Servs.,
Chronic
Kidney
Disease
Disparities:
Educational Guide for Primary Care 4, (Apr. 2021),
https://www.cms.gov/files/document/chronic-kidneydisease-disparities-educational-guide-primarycare.pdf.
Private insurance plans ordinarily have a certain
networks of providers. Upon diagnosis (and likely
even before when individuals are dealing with CKD),
ESRD patients often have an established set of
physicians and other providers within that network.
There is no guarantee, however, that all of these
providers will also accept Medicare. Thus, if patients
with ESRD are forced off of private plans and onto
Medicare, they may experience disruptions in
treatment, whether because of difficulties in finding a
new provider, because the new provider lacks the
familiarity with the patient and the patient’s prior
course of treatment, or even because the new provider
is of lower quality, or has not yet had the opportunity
to earn the patient’s full trust.
Unsurprisingly,
research shows that forced transitions can cause a
breakdown in trust between patients and physicians,
which for ESRD patients is particularly important.
Charlotte Paddison et al., Experiences of Care Among
23
Medicare Beneficiaries With ESRD: Medicare
Consumer Assessment of Healthcare Providers and
Systems (CAHPS) Survey Results, 61 Am. J. Kidney
Diseases
440
(Mar.
1,
2013),
https://www.ajkd.org/article/S0272-6386(12)013297/fulltext.
*
*
*
ESRD triggers one of very few exceptions to
Medicare’s age eligibility rules. An ESRD diagnosis
entitles someone to coverage virtually immediately,
regardless of age. By making this exception, Congress
demonstrated its commitment to ensuring ESRD
patients can receive life-saving care. However, this
care is far from free, and Congress also passed antidiscrimination provisions to protect ESRD patients
and to prohibit private health plans from adopting
both blunt and clever schemes to push the high cost of
ESRD care entirely onto the federal government.
According to the complaint, Petitioners intentionally
designed a plan to do just that, and achieved their aim.
That is discrimination, pure and simple. This Court
should recognize, as the court of appeals correctly held,
that the plain text of the MSPA precludes such
conduct. Any other conclusion would risk allowing
plan sponsors to inflict exactly the harms on ESRD
patients that Congress intended to foreclose.
24
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
GABRIELA ILLA
SIDLEY AUSTIN LLP
One South Dearborn
Chicago, IL 60603
(312) 853-7000
CARTER G. PHILLIPS*
KWAKU A. AKOWUAH
CHRISTOPHER A. EISWERTH
MICHELE L. ARONSON
LAKEISHA F. MAYS
ALEXANDRA T. MUSHKA✝
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-8000
cphillips@sidley.com
Counsel for Amicus Curiae
January 26, 2022
* Counsel of Record
✝ Admitted to California
but not D.C. Bar
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.