Purpose: Two for-profit dialysis providers control >70% of the US kidney dialysis market. They use their excessive market power to force private insurers to pay nearly 4 times the Medicare rate, earning exorbitant profits for themselves at the expense of the health care system. Both the legislative and judicial systems have been called on to address this inequity, so far without success.
Methods: We examined the history of this issue as set forth in official Centers for Medicare & Medicaid Services, US Department of Health and Human Services, Federal Trade Commission, and other regulatory documents as well as court filings and opinions. We analyzed the legislative efforts to address the problem and the judicial response.
Findings: We found that most efforts, to date, have failed. However, a 2022 US Supreme Court decision helps illuminate a path forward, in large part by defining the limits of judicial intervention.
Implications: We identify a path forward that would separate the monopolistic players using a multipronged effort involving US Department of Justice, Federal Trade Commission, Office of Inspector General, and states attorneys general. We also caution that, based on our research, the providers could challenge further efforts by deciding to withdraw services in certain areas or refuse to do business with certain insurers, resulting in patients having difficulty accessing dialysis.
Keywords: American Kidney Fund; Medicare Secondary Payor Act; abuse; dialysis; fraud; monopolies.
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