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CapitolThe Supreme Court Ruling on the Affordable Care Act--It May Help the Kidney Community

The U.S. Supreme Court today upheld the legality of the provisions of the Affordable Care Act -- passed by Congress in 2010--- that were designed to reform health care insurance coverage in this country. The ACA addresses many concerns of people with kidney disease as well as transplant recipients and living donors.

Universal Coverage Can Help those with Pre-Existing Conditions

A key component of the reform law is the government's requirement that U.S. citizens buy health insurance--known as the individual mandate. Assuming that insurance is affordable, universal coverage would benefit people with pre-existing conditions, such as kidney disease. Provisions in the ACA eliminate annual and lifetime caps on the amount of expenses that health insurance covers. Among other things, these provisions are an opportunity to address discrimination against living organ donors seeking health insurance and as a way of providing an option for kidney transplant recipients who lose Medicare coverage for anti-rejection medications.

Getting Insurance–the Health Care Exchange

At the heart of the Affordable Care Act is the concept of a new state-based marketplace for health insurance, known as the health care exchange. Starting in 2014, this new marketplace would give individuals and small employers some of the advantages that large companies enjoy because of their purchasing power. In addition, a program of premium and cost-sharing subsidies would advance the goal of making exchange-based insurance affordable. A dozen states have already taken steps to create the health insurance exchanges envisioned by ACA, either by legislation or executive order.

Provisions Impacting Kidney Care

In the two years since the passage of the Affordable Care Act, the kidney community has identified a number of health care reform implementation issues that would need to be resolved through advocacy. These include the following:

  • Will dialysis and transplantation be included as “essential health benefits” in the insurance that is to be made available through the exchanges and will there be any restrictions on these benefits?
  • Will people with kidney failure be able to keep exchange-based small employer group health coverage even though they are eligible to apply for Medicare?
  • Will people with kidney failure be eligible for premium and cost-sharing subsidies for exchange-based insurance despite eligibility to apply for Medicare?

Some, but not all, of these questions have been answered during the last six months. In an “Essential Health Benefits Bulletin,” issued by the Center for Consumer Information and Insurance Oversight on December 16, 2011, it was stated that organ transplants are consistently covered across the existing markets and plans examined, and, presumably, should be considered an essential health benefit.

The Interim Final Rule on health insurance exchanges published in the Federal Register on March 27, 2012, provided additional clarification. “We note that neither the proposed nor the final rule state that individuals will automatically be terminated from Exchange coverage should they be found eligible for Medicare.”

In addition, employees with kidney failure will not have to give up their exchange-based small employer group health insurance during the first 30 months of ESRD. Specifically: “We clarify that QHPs (Qualified Health Plans) offered in the small group market fall under the definition of a group health plan subject to MSP (Medicare Secondary Payer) provisions codified in section 1862(b)(1) of Social Security Act. This would result in parity between the SHOP (Small Business Health Options Program) and non-Exchange small group market regarding the applicability of MSP rules that pertain to ESRD coverage.” This means new ESRD patients will remain in their private health insurance, rather than transfer to Medicare, for the first 30 months of kidney replacement therapy.

On the other hand, the U. S. Department of Health and Human Services did not require that exchanges enforce specific standards for access to health care providers reimbursed by exchange-based insurance. “With respect to the other specific suggestions offered by commenters, (reasonable proximity of providers to enrollees’ homes or workplaces, ongoing monitoring process, and out- of-network care at no additional cost when in-network care is unavailable), we are concerned that the proposed standards may not be compatible with existing State regulation and oversight in this area.”

The Internal Revenue Service (IRS) has ruled that people who are eligible for other qualifying coverage, including Medicare beneficiaries, are not eligible for the premium tax credit that makes purchase of individual health insurance through the exchanges affordable. However, the IRS and the Treasury Department expect to publish additional guidance, clarifying how this applies if someone becomes eligible for government-sponsored minimum essential coverage when the eligibility for that coverage is a result of a particular illness or condition.

It remains to be seen whether the federal government will recognize dialysis as an Essential Health Benefit and require insurers offering coverage through exchanges to pay for year-round dialysis treatments. However, it should be noted while dialysis is not a mandated benefit under most states’ Medicaid programs, in practice every state provides dialysis services. It is very likely that even if dialysis is not a mandated essential benefit, it would nevertheless be covered.