A Texas judge on Jan. 12 approved a request by dialysis companies to delay a new regulation, issued by the Centers for Medicare & Medicaid Services and expected to take effect Jan. 13, that would have required them to disclose to health plans when premium assistance was being offered to patients who sign up for private health insurance.

Providers said if the rule was finalized as planned, insurers would use such information to refuse coverage to dialysis patients. HHS has said dialysis companies and other health care providers have  steered patients away from Medicare and Medicaid health plans and into these private plans, offered through the Affordable Care Act health exchange programs, to boost profits.

Related: Federal government defends final rule for dialysis facilities, argues against provider suit 

U.S. District Judge Amos Mazzant granted the temporary restraining order, filed by dialysis providers Fresenius Medical Care, DaVita Inc., U.S. Renal Care, along with Dialysis Patient Citizens, saying the group did show that HHS “likely violated the procedures of the Administrative Procedures Act” in pushing the final rule through without adequate time for feedback and review. The judge also said the providers showed evidence that patients would “suffer irreparable injury if the injunction is denied.” The rule, if approved, could force patients to shift to public insurance options, potentially disrupting insurance for themselves and members of their family now covered under private plans. Mazzant said HHS “will suffer no comparable harm if the Rule’s implementation is delayed while the Court addresses the merits of Plaintiffs’ challenges to the Rule.”


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The U.S. Department of Justice, which has subpoenaed the providers and the American Kidney Fund for records on payments made for premium assistance to the AKF’s Health Insurance Premium Program, filed a motion in court Wednesday against the restraining order, saying that the final rule protects patients from being steered by their dialysis providers into plans that are in the best interest of the provider, but often not ideal for patients.

“Unfortunately, the main source of information for a patient faced with choosing what coverage option best fits his or her unique circumstances is often an agent of the dialysis facility. And the provider has an enormous financial conflict of interest given the boost to its bottom line that accrues from every patient who can be steered into choosing a commercial plan,” the DOJ said in the motion. “Even where a provider (or a provider-funded charity) makes payment of a patient’s premium, the choice that is right for the provider may be wrong for the patient.”

The American Kidney Fund released a statement Jan. 12, urging HHS to withdraw the interim final rule. “By forcing patients who need charitable assistance to seek permission from insurers before applying for coverage in the individual market, the rule effectively cedes all decision-making to insurers, who have already taken steps to bar low-income dialysis patients from accessing their plans.”

The temporary restraining order can stay in place up to 14 days after its issuance, the court said.