Dialysis Provider Services

TGF is at the forefront of fight to preserve provider and patient rights under the Medicare as Secondary Payer (MSP) Act provisions for individuals with end stage renal disease (ESRD). In Bio-Medical Applications of Tenn., Inc. v. Cent. States, Se. & Sw. Areas Health and Welfare Fund, 648 F. Supp. 2d 988 (E.D. Tenn. 2009), TGF secured the first favorable decision for a dialysis provider using the provisions of the MSP Act to seek reimbursement. In that case, currently on appeal in the Sixth Circuit, the court held that a group health plan illegally takes into account an ESRD patient’s Medicare entitlement when the plan language terminates its coverage based on the ESRD-based Medicare entitlement. This holding required the plan to pay primary benefits for all dates of service.

MSP laws prohibit group health plans from taking into account that an individual is entitled to Medicare based on ESRD and from differentiating in benefits provided to those with ESRD. Actions that constitute impermissibly taking into account or differentiating include terminating coverage, reducing reimbursement, converting from GHP coverage to Medicare Advantage coverage, or imposing additional obligations not required of other participants.

Plans have begun to take into account and differentiate by designing plan limitations that apply to outpatient dialysis or decrease benefits according to some formula designed to coincide with Medicare entitlement. These creative techniques are nothing more than substitutes for ESRD-based Medicare entitlement or ESRD.

TGF will continue to shape the national landscape in MSP law by recovering primary payments for providers and litigating contested issues. TGF assists in enforcing the MSP laws as well as identifying new payer strategies for illegally taking into account and differentiating.


  • TGF has become a national leader in the fight to preserve provider and patients rights against ESRD related benefits violations. In Bio-Medical Applications of Tenn., Inc. v. Cent. States, Se. & Sw. Areas Health & Welfare Fund, 648 F. Supp. 2d 988 (E.D. Tenn. 2009) Attorney Doug Gibson secured the first favorable federal district court provider decision regarding group health plan ESRD Medicare Secondary Payer Act violations under ERISA.
  • Medicare as Secondary Payer Act Violations — taking into account Medicare entitlement OR differentiating in benefits available to those with ERSD to reduce plan’s financial obligations. These may manifest through any of the following schemes:
    • Converting enrollees to Medicare Advantage plans upon ESRD Medicare entitlement (or dual entitlement situations)
    • Reducing reimbursement (with or without justification in the plan document) after the first three months of service
    • Plan amendments that reduce benefits to those with ESRD, Medicare, or some equivalent therefore, such as “outpatient dialysis”
    • Plan use of “repricers” that specialize in “dialysis cost control” such as Dialysis (Defining) Cost Containment, Ethicare Advisors, and DialysisPPO.
    • Furthermore, many plans attempt to be less overt, utilizing “benefits limitations” that may manifest through many of the issues discussed in the Insurance or Employer Group Health Plan Denials section above.
  • TGF works with dialysis providers to successfully resolve ESRD related claims denials without need for legal proceedings or litigation. TGF contested plan benefit denials involving Dialysis Cost Containment, Ethicare, and DialysisPPO, reaching favorable agreements with the plans.
  • TGF successfully contests refund demands when payers attempt to recoup or off-set voluntary payments made during or after the ESRD Medicare coordination of benefits period. TGF has found that payers will routinely discontinue the patient’s benefits once it learns the patient has become eligible for Medicare, resulting in retro-denials and requests for refunds.