Our kidneys are necessary for life—they filter toxins from your bloodstream, mix it into your urine, and you piss it out. As long as your kidneys work, any “wellness” treatment claiming to help you cleanse your body of toxins is absolute bullshit, and I hope any cunts promoting it choke on a bag of diseased kidneys.

Kidneys can fail in a couple different ways, however. Sometimes they get an infection, which can be treated with minimal dialysis once the infection is cleared, and they can recover. Other times, they may have end-stage renal failure (ESRF), and require a shit-ton more dialysis, basically for the rest of their life, unless they score a kidney transplant. That difference between the two, is the heart of this case here.

Marietta Memorial Hospital Employee Health Benefit Plan (MMHEHBP…this acronym sucks balls), is a health insurance company for employees of the Marietta Memorial Hospital in Ohio. It’s governed by the Employee Retirement Income Security Act (ERISA).

Their opponents in this legal battle are DaVita Inc., which are a company specializing in dialysis.

The basic concept of the law around this shit, is that the Medicare Secondary Payer Act prohibits care plans from discriminating against people with ESRF. But the cheap-asses at MMHEHBP are like, “Woah, dude. These people with ESRF are milking us dry with their never-ending need for dialysis, and they’re gonna die anyway, so…”

As such, they launched an evil plan. They have a tiered system where tier 1 pays the highest percentage of total costs, at a rate that is industry normal. But that only occurs if the employee of the hospital seeks care within the hospital. Makes sense, as they can control their costs that way.

Then there’s tier 2, which is anyone out of their network. This is where DaVita comes in. People who go to places like DaVita get a lower reimbursement than those who get dialysis at the hospital or an in-network provider. Plus, for outpatient dialysis, they don’t pay the going rate, they pay the rate Medicare pays, which is significantly less, but Medicare gets away with it, because they buy in bulk, I guess.

It appears their hope was to push these people to pay so much for this shit, that they’d cancel their private insurance, and go straight to the swaddling arms of Medicare.

But Congress, trying to control costs of their own, made law to prevent insurers from pushing people off their private plans with shitty reimbursements, onto Medicare, with it’s limitless supply of money congress thinks it has.

So by law, for the first 30 months, the private plans are on the hook, and only after then, does Medicare kick in. Even if the patients are eligible for Medicare before the 30 months end, the private companies still pay for that first 30 month’s.

Just so we understand, insurance is like gambling. Insurance companies have a shit ton of statistics on how many people get what disease, and how much on average that costs. People called actuaries jerk off over crunching numbers like this, then come up with what they think the insurance companies should charge for premiums.

If the average medical expenses a person might incur is $1,000 a year, then they might charge $1,200. The $200 difference, if these actuary nerds did their math right, is the insurance company’s profit.

The government argues this is the risk the insurance companies took when agreeing to insure this person, so they’re on the fucking hook, even if it does break the bank.

But the insurance companies, trying to avoid going bankrupt because their actuaries screwed the pooch, are hoping to dump that shit on Medicare wherever they can.

MMHEHBP basically argue that under their plan, this company is a specialist of sorts which the client has opted to go see, and as such, are “out of plan” and get less reimbursement. As if somehow, they didn’t need this, or some shit.

But DaVita is like, “You’re specifically giving us a shitty reimbursement because we’re the fucking people helping ESRF patients. It’s expensive AF to do this shit, and you’re using this tier 2 bullshit to get out of covering the treatment they need. We’re not some overpriced specialists doling out rainbows and popsicles, we’re just the ones who provide the service these people fucking need. Now stop being cheap assholes.”

Because the law prevents discrimination against people with ESRF, this system by MMHEHBP appears to be a creative way to discriminate against them, without specifically discriminating against them.

Imagine legislators wanted to prohibit you from using your food stamps at McDonalds, but since they can’t just single out McDonalds, they prevent you from using it on any food that starts with the letters “Mc.” That’s basically what’s happening here.

MMHEHBP however says, “Listen, assholes. We cover dialysis at the same rate for everyone, whether they have end-stage renal failure or not, doesn’t change a thing for us. It’s not our fault it just happens to be our totally non-biased and creative rules only discriminate people with ESRF. You don’t see any mention of ESRF in our rules, do you? So obviously, we’re not discriminating, it’s just bad luck or something for these people.”

While that may be true, let’s be clear, what they cover is pretty low. People without ESRF need minimal dialysis—few visits—done. They are going to just pay their “out of pocket” expenses and move on.

But people who have ESRF need significantly more dialysis—they need it for the rest of their life! Their kidneys don’t fucking work anymore. So either they get dialysis forever, get a transplant, or they die. It’s literally that fucking simple. So unless their last name is Musk, they probably can’t afford this shit, even with the insurance picking up a portion of the tab.

So DaVita makes a pretty strong case that MMHEHBP are effectively discriminating against people with ESRF, because it’s the only way in their mind, to keep their premiums at an acceptable level while still being profitable. No doubt that dialysis on the reg, is expensive AF. It’s not like you can just strap an oil filter to someone’s ass and send them on their way.

DaVita points out that Marietta typically pays at the “going rate” for most services, for outpatient dialysis, it somehow only pays 87.5% of what Medicare pays, which is already lower than normal. Since DaVita is king in this industry, their rate is assuredly going to be the average “going rate” for dialysis. So again, MMHEHBP seems to be singling out DaVita and people with ESRF.

Counsel John J. Kulewicz for the insurance company, opened with this.

Mr. Chief Justice, and may it please the Court: For four decades, the Medicare Secondary Payer Act has been a coordination of benefits statute.

It establishes that a group health plan must pay its benefits first during a 30-month coordination period when the plan and Medicare both cover an individual who must contend with end-stage renal disease. The plan must not take into account the Medicare entitlement or eligibility of an individual during that time or differentiate in the benefits that it provides between individuals with end-stage renal disease and other individuals covered by the plan on a basis that relates to that diagnosis. The Sixth Circuit has determined that there also is an implied mandate that dialysis providers occupy a specific position to be determined relative to providers who serve other vital healthcare needs of the 157 million American people who depend upon group health plans to defray the costs of their healthcare. When Congress requires a specific benefit or parity between benefits, it does so directly.

It did not do that here.

The Medicare Secondary Payer Act coordinates benefits.

It does not prescribe them.

The plan at issue in this case provides the same benefits uniformly to all participants and as primary payer during the 30-month coordination period. Respondents fail to state a claim under the Medicare Secondary Payer Act.

Because the alleged violations of the Medicare Secondary Payer Act are the express and only basis of their ERISA claims, Respondents also fail to state a claim under ERISA. The Court should reverse the Sixth Circuit and enter final judgment in favor of Petitioners on all remaining claims. I welcome the questions of the Court.

You’ll see mention of “Failure to state a claim.” This basically means, that even if everything the respondents say are accurate, it’s not cause for a judgement on their behalf. It’s like, imagine as a kid, you wanted part of your brother’s steak. Your mom asked why, and you argue it’s because he’s a poopyhead. Assuming your brother is a poopyhead, that still doesn’t justify that you should get some of his steak. Got it?

Justice Thomas started the questioning by insinuating their plan seems to target people who are poor, with ESRF, putting them in a position where they couldn’t possibly pay their portion.

But counsel for MMHEHBP was like, “No way man. Under our plan, they’d pay way less. Like they’d pay $1800 per treatment under their bullshit, but they only pay $96 under our plan. So, are we done here? Everybody happy? Good, good.”

However, Justice Breyer was like, “Slow down, Spanky! Let me ask you this. Is your hospital one big building?”

Counsel confirmed it was.

So the Breyer asked, “Anyone going to your hospital under your plan, gets the tier 1 reimbursement, yo?”

Counsel confirmed again

Breyer then asked, “Do you offer this outpatient dialysis, bro?”

Counsel was like, “Woah, what’s with all the questions, man? Geez Louise! Who gives a fuck if we don’t offer it? I mean, we don’t. But in the immortal words of Hillary Clinton, what difference does it make?”

Justice Breyer’s point being, that while they act like this patient makes the choice to go to DaVita over their hospital, their hospital doesn’t fucking offer the service. As such, there’s no fucking way for them to get the tier 1 rate.

Justice Sotomayor, smelling a rat, really pushed him on this idea that their tiered system for dialysis really does bias against people needing outpatient dialysis, when only people with ESRF need outpatient dialysis, effectively making it a bias against people with ESRF.

Justice Kagan jumped on counsel with Justice Sotomayor, and went on to ask, “According to the fucking numbers, 99.5% of people who have ESRF need outpatient dialysis, and 97% of people needing outpatient dialysis have ESRF. If those numbers were 100% each, then clearly, one is an analog for the other, because they’d be mutually inclusive, yeah? So is this pathetic little .5% and 3% really enough to say you’re not discriminating against ESRFs, asshole? Give me a fucking break with this noise.”

She later quite angrily chimed in with this:

You also can’t distinguish on the basis of the need for renal dialysis.

All right.

Now what does Congress mean when it says that? And it’s not particularly precise and it’s not particularly grammatical, but why is that there? It’s there because they know you’re going to do exactly what you’re doing.

It’s there because they’re saying don’t try to distinguish between those with end-stage renal disease and those without end-stage renal disease by finding the perfect proxy, which is the therapy rather than the condition.

So that’s why that’s there. And then the “in any other manner,” in case there’s a proxy that we haven’t thought of, don’t try that one either.

So all together this is basically saying you can’t distinguish between people with end-stage renal disease and those without.

You can’t do it directly.

You can’t do it by means of the fact that this group needs dialysis and this group doesn’t.

And you can’t do it by finding any other proxy that perfectly separates these two groups.

To say she was overly annoyed with counsel Kulewicz, would be a massive understatement.

Next up, counsel Matthew Guarnieri, representing the government as an amici, weirdly supporting MMHEHBP. This seems odd, as the government will end up paying more, if they side with him. But apparently, counsel Guarnieri is arguing on principle. He once worked with Justice Kagan, and she, despite thinking his side of the argument is whack, compliments him on adhering to principle, even when it cuts against the government he represents.

He opened by basically arguing what MMHEHBP did. They didn’t single out ESRF people, so they’re not discriminating against them, as the law is written. He even goes on to say that the proxy argument Kagan put forth is “irrelevant.” Going to assume that stung her a little, since they’re former coworkers, and he basically called her a moron.

Justice Alito was concerned about the financial harm that might be incurred by the patient. If MMHEHBP agreed to pay the going rate, which is what DaVita charges, and is well above what Medicare allows, that means their 30% deductible will be 30% of the higher number, costing the patient more, even if it helps DaVita.

Counsel Seth P. Waxman, up next for DaVita, opened with this.

Mr. Chief Justice, and may it please the Court: Differential treatment of outpatient renal dialysis is most certainly differential treatment of individuals with ESRD.

Congress determined that, and it determined it because Congress understood in 1972 and in 1981 and thereafter that ESRD patients uniquely and utterly need outpatient dialysis for the rest of their lives. And a plan whose purpose as alleged here and effect is to move primary coverage of ESRD patients to Medicare is one that most certainly “takes into effect those patients’ eligibility for Medicare.” The reading urged by the Petitioners and the solicitor general by which the anti-discrimination provision bars only plans that single out ESRD patients by name and the take-into-account provision only applies to plans that reference Medicare eligibility expressly, renders both of these statutory protections utterly toothless. And in each respect, their reading violates the text of the statute.

Take the anti-differentiation provision, which has occupied, I think, virtually all of the argument so far. That provision protects ESRD patients by prohibiting differential treatment either by express reference to ESRD patients or by proxy. The particular proxy codified in the statute and the one that is relevant here expressly prohibits differential treatment “on the basis of the need for renal diagnosis,” a treatment that Congress has long understood to be completely inseparable from ESRD itself. Ninety-nine and a half percent of all of DaVita’s outpatient patients, outpatient dialysis patients, have ESRD.

There is simply no reasonable argument for singling out outpatient dialysis as anything but differential treatment of individuals with ESRD. And as was noted, I think by Justice Sotomayor, even the Ninth Circuit in Amy’s Kitchen agreed, and I’m quoting from the opinion, “a plan would violate the MSP if it provided differential coverage for routine maintenance dialysis,” that is, dialysis received only by persons with ESRD, than for all other dialysis.

That is exactly what this plan does. Now, I know that I’m trenching on my two minutes, but I just wanted to reference the fact that as has been mentioned by several members of the Court, there is another provision that is on the basis of either ESRD, calling it out by name, or the need for renal dialysis or any other manner. And that’s because, as I think Justice Kagan’s question suggested, Congress understood at the time that other proxies for ESRD might exist or more likely might come to exist with medical advances. And so the statute also prohibits differentiation on any other manner, which, in context, should be understood to mean in any other manner that in effect singles out a treatment for ESRD. I want to clarify just a couple of, I think, errors that my friend on the other side made.

The notion that they are actually helping beneficiaries because they are limiting the amount of balance billing available is utterly wrong. One of the main reasons that renal dialysis is disadvantaged here is that the plan says unilaterally there is no in-network service for this.

If there were in-network service, as there is for virtually all employment group plans in the United States—this is an extreme outlier.

There’s no balance billing at all. If there was an in-network option — and this goes to, I think, Justice Alito’s questions about who’s harmed.

If there was an in-network option, there would be no balance billing and patients would have a right to treatment.

They would have a right to treatment by somebody who was in network.

Right now, they don’t. And as there are some really terrific and very knowledgeable amicus briefs filed in this case.

It is completely clear and Congress has understood that if this Court accepts the other side’s ruling, there is no reason on God’s green earth that UnitedHealth and AEtna and all the big health plans and big, big employer health plans, all of whom do not differentiate in any basis on the need for renal dialysis.

Justice Gorsuch, who up to now had been rather quiet, jumped in with a rather long exchange between himself and counsel Waxmen.

The plan only has this lower reimbursement amount for this out-of network dialysis. So justice Gorsuch was like, “If the plan also put people with congestive heart failure on this lower paying plan, would you lose your case?”

Counsel Waxmen agreed they would, because now it’s not singling out ESRF.

After this, Justice Gorsuch was trying to get in his question, when counsel Waxmen kept interrupting to make his point. After a few moments of this, counsel was reminded by Gorsuch who’s in whose courtroom. He sternly asked him to stop.

He finally got to answer this line of questioning with what was almost another opening argument:

Well, I think Mr. Guarnieri has told you in his argument that the government is on the other side because it feels some duty to defend one particular sub-provision of its regulations which, as our briefs explain, is inconsistent with both the statute and the provision that immediately precedes it. He has said in his brief and today here that the government is quite troubled by what this plan is trying to do and it acknowledges that there very likely will be an adverse financial effect on the Medicare fisc if the Court reverses and adopts the reading of the statute that Judge Murphy provided in dissent below. But here is—and I apologize if I was wrangling with you, but I was objecting to your suggestion, which I know you don’t mean, but I had heard it mistakenly, that the only people who are harmed here are possibly the Medicare fisc and my company or the companies. The harm here—and this is probably laid out as well as anywhere by the amicus brief of the dialysis patients coalition, which is 30,000 dialysis ESRD sufferers, who explain all the ways in which the provisions of this plan harm people. Now you can say that, you know, this is just a payment dispute, but it’s not. The core benefit that these plans provide is payment for medical services. And there’s real harm, number one, that uniquely, for this service, there is no in-network available.

So there is no provider who has agreed not to balance bill and who has guaranteed that you can get treatment. It requires higher co-pays and deductibles, up to $7,000 a year.

It doesn’t provide any relief whatsoever for the first three months in which there is no Medicare backstop. And you can say: Oh, well, this is the Medicare Secondary Payer Act, you can always enroll in Medicare secondary.

The government says that’s an extra $170 a month, which is, by the way, the minimum.

It is certainly not applicable to everybody. You pay Medicare $170 a month or $250 a month if you can get the secondary coverage. This is in addition to what these people of limited means and who are facing end-of-life worries are already paying to the group health plan.

And if they can’t reasonably afford to pay two sets of benefits, they do what Patient A did in this case

Justice Alito, chimed in with a completely different approach, where he seemingly argued DaVita has a monopoly, and as such, their rates probably aren’t fair market value—they’re inflated because they’re the only game in town.

He pointed out that the average cost for the service is around $270, but they charge over $1,000. Seems like one helluva markup.

In a 7:2 decision, SCOTUS sided with MMHEHBP. The way the law is written, MMHEHBP is not in violation of it. They seemed to agree it violates the spirit of the law, but they don’t rule on spirits, they rule on verbiage. MMHEHBP treat every person who needs dialysis the same, whether they have ESRF or not, and that’s enough to be compliant, even if their plan is clearly far less helpful for people with ESRF.

Justice Sotomayor and Kagan are like, “Are you fucking joking?” See my McDonald’s analogy above. They’re basically saying the same thing. In their view, MMHEHBP simply crafted rules to discriminate against people with ESRF, by lowballing dialysis as a whole, knowing for people without ESRF, it wouldn’t be a huge burden, but people with it, would be devastated financially.

But in the majority’s eyes, if they don’t like it, congress should have written the fucking law better. It’s not SCOTUS’ job to rewrite laws in a more intelligent way.

This is an important thing to consider when hearing a SCOTUS decision. I’m sure that if they were to be asked if they felt MMHEHBP was discriminating against people with ESRF, it would have been a 9:0 agreement that they were. But the Republican appointees tend to be textualists. They think it’s their job to interpret the law or the constitution as written, not to rewrite it as they see fit.

So I’m not joking when I say they may think that MMHEHBP are being pricks, but they’re not condoning that. This decision is more of an admonishing of congress for poor wording of the law they wrote. If they don’t like it, it’s their job to fix it.

Hear oral arguments and read about there case here at Oyez, or at SCOTUSBlog.