INVESTIGATIVE REPORT
The Crusader Takes A CLOSER LOOK
Part 4 of a 4-Part Series
HOW TO FIGHT BACK
How do you eat an elephant? One bite at a time.
With the dialysis hustle defined, you may now be asking yourself how average citizens can protect themselves against the dubious practices outlined in this series. As two federal lawsuits make their way through the courthouse, some dialysis reform advocates are not deterred from taking on dialysis companies through the statehouse.
This past November, California voters rejected a ballot measure that would have altered requirements for dialysis clinics and improve conditions in the state. Corporate giants Fresenius and DaVita spent tens of millions of dollars to defeat the measure.
In 2018, in a different initiative before California voters, legislation sought to cap dialysis clinics’ profits and force them to invest more in patient care. It too failed, after industry lobbyists and dialysis corporations spent $111 million to defeat the measure, in contrast to the $30 million spent by unions in its support.
But not all is lost, there have been some wins.
In 2018, a Denver judge awarded families of three DaVita patients $383.5 million in a wrongful death lawsuit. In 2016, Fresenius agreed to pay $250 million to settle thousands of lawsuits from dialysis patients and or their beneficiaries, claiming that the company’s products had caused heart problems and deaths.
Since 2000, Fresenius Medical Care (FMC) has paid a total of $866 million in penalties for various lawsuits and violations, according to information provided by the U.S. Department of Justice and the Securities & Exchange Commission.
FMC and DaVita have 3,900 clinics nationwide, serving about 70 percent of America’s half-million dialysis patients. Around 347 dialysis clinics are in Illinois. The two companies earned $4 billion last year in profits from dialysis operations. It should be noted, the global dialysis industry is expected to submit $118 billion in billings by 2023.
There are an estimated 400,000 dialysis patients in the U.S. In 1972, the government began paying all dialysis treatment through Medicare regardless of age. Federal health care spending tops more than $114 billion each year on just kidney care. This fact spawned comedian John Oliver to joke that the abdominal organ is the only part of the human body that has “universal health care.”
A person needs dialysis when there is an injury to the kidneys, or chronic conditions that lead to organ failure. People usually need the treatments for the remainder of their lives unless they receive a kidney transplant. African Americans comprise roughly 13.5 percent of the U.S. population, but account for 35 percent of patients on dialysis.
Of the 98,277 people in 2021 currently waiting for a kidney transplant, the federal Department of Health and Human Services notes that more than half are African American and Latino.
A 2005 study used by dialysis corporations to justify why so many African Americans were on the treatment versus slated for kidney transplant alleged that Black dialysis patients “lived longer” than whites.
Two years earlier a report noted researchers analyzed data from nearly 1.3 million adults who underwent dialysis between 1995 and 2009. Over an average follow-up of 22 months, Hispanics were least likely to die, and whites were most likely to die. Black patients were in between.
Unbeknownst to most patients, hospital administrators, social workers and physicians can refer patients to dialysis centers, products and services, without disclosing they are being paid or rewarded for doing so.
Whistleblower Arlene Mullin, and two federal lawsuits filed in recent years, allege these companies are in violation of the federal Anti-Kickback Statute (AKS). Such practices, Mullin and others assert, have cost people their lives.
“For profit dialysis has the only group of physicians who are immune from the Anti-Kickback Statute and the Stark Law, which means physicians can profit from their patients’ care in more ways than one,” Mullins said before a U.S. Senate hearing.
“This has led to huge cash and stock options given to the physicians from the for-profit corporations. Physicians are given ‘x’ amount of dollars to refer patients to a clinic. The cheaper a clinic is run shows up in maximum benefits of the profit sharers.”
According to an online bio, Mullin was instrumental in getting the hearings on aging before the U.S. Senate in 2000 where she testified on patient care issues within the dialysis industry.
“Our patients now are on the stock exchange since their physician is now in business with the dialysis corporation,” Mullin alleged.
“These large corporations will try to convince you their budget is being sacrificed because the government hasn’t given them a raise. The dialysis industry knows that this is the only medical disease that the government pays as primary 80 percent of all costs for everyone, and the patient’s insurance is secondary. Then to top it off the government is charged an extra fee of $200 or more per month from physicians for acknowledging his patient is still alive.”
She told the Crusader, “Citizens need to do all they can to stay informed and to keep the issues before lawmakers.” She added, “I encourage the development of sunshine committees.”
Advocates say petitioning the state legislature or governor’s office for a sunshine committee (similar to a blue-ribbon panel) on dialysis industry in Illinois is gaining support. The committee would be empowered to provide public and witness testimony; make recommendations to the Illinois General Assembly; and to repeal or amend exemptions to the consumer protection laws as it pertains specifically to the dialysis goods and services.
In Illinois health care consumers are protected from deceptive practices through the Illinois Insurance Claims Fraud Prevention Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, and the Illinois False Claims Act. But how many everyday citizens have copies of this legislation readily available? And, suspecting someone of doing something unethical is not proof thereof.
Much of this can be a bit overwhelming for someone who is simply trying to stay well or unravel the complex and balled yarn of issues in health care. Though holding corporations and the people who run them accountable may seem daunting and insurmountable, it helps to keep everything in perspective.
Remember, there was a time when Blacks in the U.S. enjoyed no legal and social protections by local or federal government. Our ancestors’ bodies and the lives of their children’s children were priced, marketed, sold and bought. Even the Supreme Court said of our enslaved relatives that they had no rights that “whites were bound to respect.”
All of that has changed because we stood up, stood together and fought back. Through our advocacy, revolutionary change agents and collective, social improvisation, the laws of this land were made accessible to all.
Like eating an elephant, people who become advocates must be careful to present well-researched and proven steps to receive positive, social change. Advocacy seeks to defeat injustice and to hold authorities, both public and private, accountable for their actions.
Patient advocates help individuals, and their loved ones navigate the health care (and insurance) system and alleviate the pressure of trying to get the best care for people. Non-profit community health care organizations are great mining fields for advocates, who should be independent and not sponsored by a medical services organization, pharmaceutical company or hospital.
I agree with the Alliance for Health Equity when it says the highest level of all health “for all people can only be achieved through the pursuit of social justice and elimination of health disparities and inequities.”
Researcher Nairobi Henson and writer Shayla Simmons contributed to this report, which in part was made possible by The Field Foundation of Illinois, Inc. and Muck Rock. To read this series in its entirety, visit the Crusader online at [www.chicagocrusader.com].
