In this photo taken Monday, Sept. 24, 2018, Adrian Perez undergoes dialysis at a DaVita Kidney Care clinic in Sacramento, Calif. Dialysis companies have contributed an extraordinary $111 million and counting to defeat a California ballot initiative that would cap their profits, the most any one side has spent on a U.S. ballot issue since at least 2002. (AP Photo/Rich Pedroncelli)
This year has been a flashpoint for health care. As the COVID-19 outbreak continues to pose a risk to Americans, conversations about medical care and access to testing and treatment have dominated both newspaper headlines and television airwaves. Lost in these conversations, however, was recent action taken by the Centers for Medicare and Medicaid Services (CMS) that puts access to high-quality, affordable care at risk for dialysis patients and those suffering from end-stage renal disease (ESRD).

In May, CMS put forth a new regulation that eliminates time and distance limits as part of Medicare Advantage network adequacy requirements for dialysis clinics. Medicare Advantage allows patients to enroll in plans best suited to their needs for a lower cost compared to traditional Medicare. Time and distance limits place rules on how far Medicare Advantage plans can require patients to travel to receive treatment, helping to guarantee networks include all the types of medical care patients may need. The reason these rules exist is to make sure networks provide patients with medical facilities within a reasonable distance as part of their Medicare Advantage plan. With specific time and distance standards in place, patients are able to access treatments they need without needing to go too far.

However, the new CMS rule replaces that with a different, lower standard that is usually only reserved for treatments that don’t require patients to regularly travel. This standard instead simply requires that a network align with “the prevailing community pattern of health care delivery in the area.” In short, with this standard, dialysis patients are not guaranteed their network will include a nearby dialysis facility. This is seriously problematic for dialysis patients, since many need to go to their clinic three or more times each week to receive treatments that can last for several hours. Putting dialysis in the same category as other treatments that require travel far less often is misguided, and will only hurt patients.

To make matters worse, the new CMS rule undoes the bipartisan progress Congress achieved with the 21st Century Cures Act. Passed in 2016, the law included provisions that would enable thousands of more ESRD patients to qualify for Medicare Advantage plans. That law officially took effect on January 1st, 2020, and ESRD patients should have been able to take part in open enrollment this coming October to have access to Medicare Advantage plans, which can open the doors to additional benefits that they may not traditionally have access to with standard Medicare. However, with this new rule, dialysis facilities in Medicare Advantage plans will be too far away from many dialysis patients to allow them to safely travel to those facilities.

After winning a hard-fought battle in Congress to expand access to higher quality plans, the patient community is pushing back. Dialysis Patient Citizens, a patient-led group focused on helping dialysis patients and those with ESRD, recently filed a lawsuit against CMS, Administrator Seema Verma, the Department of Health & Human Services, and Secretary Alex Azar. Their goal is simple: reverse this misguided new regulation and restore the victory dialysis and ESRD patients worked so hard to achieve four years ago.

That’s why the only reasonable path forward is for this new regulation to be undone, and to reinstitute the time and distance limits in network adequacy requirements for dialysis clinics. Dialysis patients, who already struggle to receive equal treatment as other patients, fought tirelessly to become eligible for Medicare Advantage plans, and it would be wrong to effectively take that away from them. Unfortunately, that’s exactly what this new rule does.

Health care will continue to be a major point of focus in the weeks, months, and years ahead. Moving forward, it would be wrong for lawmakers and regulators to continue taking action without understanding how it will affect all patients, including those suffering from ESRD.

Ted Alexander is a member of the North Carolina State Senate.