FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 24 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVITA INC.; STAR DIALYSIS, LLC, No. 19-15963

Plaintiffs-Appellants, D.C. No. 4:18-cv-06975-JST

v.

OPINION

AMY'S KITCHEN, INC.; AMY'S

KITCHEN, INC. EMPLOYEE BENEFIT

HEALTH PLAN,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Argued and Submitted October 8, 2020 Seattle, Washington

Before: Susan P. Graber and William A. Fletcher, Circuit Judges, and Leslie E. Kobayashi,* District Judge.

Opinion by Judge Graber

GRABER, Circuit Judge:

Renal dialysis is a life-saving treatment for those with serious kidney

afflictions, including acute kidney injury and end-stage renal disease ("ESRD").

* The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. Plaintiffs DaVita, Inc., and Star Dialysis (collectively, "DaVita") provide dialysis

treatment to many patients and seek payment from any applicable group health

plan. One of DaVita’s patients is a beneficiary of Defendant Amy’s Kitchen’s

Employee Benefit Health Plan ("Amy’s Plan" or "the Plan"), a health plan offered

and administered by Defendant Amy’s Kitchen, Inc. ("Amy’s Kitchen"). The

patient has ESRD and has received routine maintenance dialysis from DaVita.

Amy’s Plan covers all types of dialysis, regardless of the underlying diagnosis, but

the Plan’s reimbursement rate for dialysis differs from the rate it pays for many

other services. The Plan paid DaVita according to the Plan’s terms.

Dissatisfied with the payment amounts that it received from Amy’s Plan,

DaVita brought this action, arguing that the Plan’s dialysis provisions violate (1)

the Medicare as Secondary Payer provisions ("MSP") of the Social Security Act,

(2) the Employee Retirement Income Security Act of 1974 ("ERISA"), and (3)

state law. The district court dismissed the federal claims and declined to exercise

supplemental jurisdiction over the state-law claims. With respect to the MSP

claim, the court held that, because the Plan reimburses at the same rate for all

dialysis services, regardless of underlying diagnosis and regardless of Medicare

eligibility, the Plan does not violate the MSP. Reviewing de novo and taking the

allegations in the complaint as true, Daewoo Elecs. Am., Inc. v. Opta Corp., 875

2 F.3d 1241, 1246 (9th Cir. 2017), we agree with the district court’s conclusions and

therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

Doctors classify chronic kidney disease into five stages. The last stage,

Stage 5, is known as kidney failure or ESRD. More than 700,000 people in the

United States have ESRD. To survive, a person with ESRD requires either a

kidney transplant or routine maintenance dialysis, a treatment that performs the

functions of a kidney. 42 C.F.R. § 406.13(b); see also Kidney Disease Statistics

for the United States, Nat’l Insts. of Health (December 2016),

https://www.niddk.nih.gov/health-information/health-statistics/kidney-disease.

Most persons with ESRD never receive a kidney transplant, so they receive regular

maintenance dialysis for the remainder of their lives. According to DaVita, a

person with ESRD typically receives dialysis three times a week. Persons with

ESRD are eligible for Medicare pursuant to 42 U.S.C. § 426-1 after the first three

months of regular dialysis treatment.

People with ESRD are not the only recipients of dialysis. The other

common recipients of dialysis are those with "acute kidney injury," described by

the National Kidney Foundation as "a sudden episode of kidney failure or kidney

damage that happens within a few hours or a few days." Acute Kidney Injury,

Nat’l Kidney Found. (Oct. 30, 2020), https://www.kidney.org/atoz/content/

3 AcuteKidneyInjury. Acute kidney injury has many different causes and correlated

diseases. Id. Recently, for example, a study cited by the National Kidney

Foundation concluded that "people hospitalized with COVID-19 are at significant

risk of [acute kidney injury]." Kidney Disease and COVID-19, Nat’l Kidney

Found., https://www.kidney.org/coronavirus/kidney-disease-covid-19 (last visited

Nov. 16, 2020). Treatment of acute kidney injury restores long-term kidney

function. Accordingly, unlike persons with ESRD, persons with acute kidney

injury generally recover enough kidney function so that they no longer need

dialysis. Similarly, unlike persons with ESRD, persons with acute kidney injury

are not eligible for Medicare pursuant to 42 U.S.C. § 426-1.

When a patient with ESRD is enrolled in both Medicare and a group health

plan, the MSP allocates primary-payer responsibility between Medicare and the

plan. Once the individual becomes eligible for Medicare, which occurs after three

months of dialysis treatment, the plan remains the primary payer and Medicare

becomes the secondary payer during a 30-month coordination period. 42 U.S.C.

§ 1395y(b)(1)(C)(i). When the coordination period ends, the plan may be the

secondary payer thereafter. Id. § 1395y(b)(1)(C).

The MSP also imposes two substantive requirements on group health plans

with respect to persons with ESRD. First, during the coordination period, a plan

may not "take into account" a person’s eligibility for Medicare due to ESRD. Id.

4 § 1395y(b)(1)(C)(i). Second, a plan may not "differentiate in the benefits it

provides between individuals having [ESRD] and other individuals covered by

[the] plan on the basis of the existence of [ESRD], the need for renal dialysis, or in

any other manner." Id. § 1395y(b)(1)(C)(ii).

Amy’s Kitchen sells organic foods throughout the United States and

employs more than 2,400 people. Many employees are eligible to enroll in Amy’s

Plan, which is an "employee benefit plan" pursuant to ERISA. Amy’s Plan is a

preferred provider organization health plan. A beneficiary may visit any medical

provider, some of which are "in-network" and some of which are "out-of-network."

For many medical services, the Plan provides no coverage at all, whether that

service is given by an in-network or an out-of-network provider. But for most

services covered by the Plan, the processing of claims depends on whether the

beneficiary visits an in-network provider or an out-of-network provider. Visiting

an in-network provider generally results in lower copayments and other advantages

for beneficiaries. The Plan typically pays in-network providers according to a rate

determined by contract and pays out-of-network providers, in the words of the

Plan, the "Customary, Usual, and Reasonable Charge" for the service.

"Patient 1" is a beneficiary of Amy’s Plan who has ESRD. Patient 1 began

receiving regular dialysis treatment in 2016 from DaVita. At the time, DaVita was

5 an in-network provider, and the Plan reimbursed DaVita at the appropriate

contractual rate.

In 2017, Amy’s Plan modified its terms of coverage by implementing a

"Dialysis Benefit Preservation Program." The Plan explained that it had found

evidence of "significant inflation" of prices charged by dialysis providers; the use

of inflated revenues "to subsidize reduced prices to other types of payers as

incentives"; and "the specific targeting of the Plan and other non-governmental and

non-commercial plans by the dialysis providers as profit centers." The Plan

implemented the program because of its

fiduciary obligation to preserve Plan assets against charges which (i) exceed reasonable value due to factors not beneficial to covered persons . . . and (ii) are used by the dialysis providers for purposes contrary to the covered persons’ interests, such as subsidies for other plans and discriminatory profit-taking.

The Program applies to all claims for "reimbursement of products and

services provided for purposes of outpatient dialysis, regardless of the condition

causing the need for dialysis." The Plan no longer uses the in-network/out-of-

network distinction for dialysis-related reimbursements. Instead, "[a]ll dialysis-

related claims will be subject to cost review by the plan administrator to determine

whether the charges indicate the effects of market concentration or discrimination

in charges."

With respect to dialysis-related claims, the plan administrator shall determine the Usual and Reasonable Charge based upon the average

6 payment actually made for reasonably comparable services and/or supplies to all providers of the same services and/or supplies by all types of plans in the applicable market during the preceding calendar year, based upon reasonably available data, adjusted for the national Consumer Price Index medical care rate of inflation.

The "Usual and Reasonable Charge" differs from the "Customary, Usual, and

Reasonable Charge" that applies to reimbursements for some other types of

medical treatment.

DaVita alleges that the reimbursements that it received beginning in 2017

were far less than the reimbursements that it received in 2016. DaVita brought this

action, alleging claims on its own behalf and as an assignee of Patient 1’s claims.

DaVita alleges that the Plan’s 2017 implementation of the dialysis-specific

program violated the MSP, ERISA, and state law. The district court dismissed

with prejudice all federal claims and declined to exercise supplemental jurisdiction

over the state-law claims. DaVita timely appeals.

DISCUSSION

A. MSP Claim

The MSP imposes two substantive requirements on group health plans with

respect to persons with ESRD. A group health plan:

(i) may not take into account that an individual is entitled to or eligible for benefits under this subchapter under section 426-1 of this title [during the 30-month coordination period]; and

(ii) may not differentiate in the benefits it provides between individuals having end stage renal disease and other individuals covered by such

7 plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner[.]

42 U.S.C. § 1395y(b)(1)(C). Amy’s Plan uniformly reimburses all dialysis

treatments whether or not the beneficiary is eligible for Medicare and whether or

not the beneficiary has ESRD. And dialysis is a treatment received by many

people: some are eligible for Medicare and some are ineligible; some have ESRD

and some do not have ESRD. DaVita nevertheless argues that, because the Plan

allegedly pays less for dialysis treatments than for other treatments, the Plan

violates both of the MSP’s requirements. For the reasons that follow, we disagree.

1. "Take Into Account"

The MSP prohibits a plan from taking into account whether the covered

individual is eligible for or enrolled in Medicare during the coordination period,

after which time the plan may be the secondary payer. See id. § 1395y(b)(1)(C)(i)

(providing that a plan "may not take into account that an individual is entitled to or

eligible for [Medicare] benefits" (emphasis added)). The Plan plainly did not take

into account Patient 1’s eligibility for, or enrollment in, Medicare. The Plan

uniformly reimburses all dialysis treatment, whether or not the beneficiary is

eligible for Medicare or enrolled in Medicare.

Notably, many persons who receive dialysis are ineligible for Medicare:

those with acute kidney injury are not, by virtue of that injury, eligible for

Medicare, and even those who have ESRD are eligible for Medicare only after the

8 first three months of dialysis treatment. Yet the Plan takes no notice whatsoever of

whether the claimant is eligible for Medicare. Claims are paid at the same rate

whether the claimant has acute kidney injury, is in the first months of ESRD

treatment, or is eligible for Medicare.

Nor does it matter, for purposes of the MSP, that the Plan calculates its

reimbursement rate by taking into account, along with other factors, the amount

that Medicare pays for dialysis treatment of other individuals. The MSP bars

consideration of the individual claimant’s eligibility for Medicare, a factor that the

Plan ignores.

Finally, our reading of the "take into account" provision renders neither that

provision nor the differentiation provision superfluous. Both provisions serve

functions that the other does not. The "take into account" provision prohibits a

plan from taking Medicare eligibility into account during the 30-month

coordination period and permits a plan to become the secondary payer after the

coordination period. Nothing in the differentiation provision concerns who pays

first. Similarly, the differentiation provision prohibits a plan from differentiating

against any person who has ESRD, including a person who is ineligible for

Medicare.

In sum, Amy’s Plan did not "take into account" Patient 1’s eligibility for

Medicare and thus comported with the MSP’s first requirement.

9 2. Differentiation

The MSP provides that a plan "may not differentiate in the benefits it

provides between individuals having end stage renal disease and other individuals

covered by such plan on the basis of the existence of end stage renal disease, the

need for renal dialysis, or in any other manner." 42 U.S.C. § 1395y(b)(1)(C)(ii).

Under the Plan, individuals with ESRD receive identical benefits, including

dialysis benefits, as those who do not have ESRD. Renal dialysis is a potential

treatment for all persons, not just for those with ESRD, and the Plan uniformly

reimburses a provider for renal dialysis whether or not the patient has ESRD.

Accordingly, the Plan does not—in any way or for any reason—"differentiate in

the benefits it provides between individuals having end stage renal disease and

other individuals covered by such plan." Id.

The second half of the statutory text does not change that conclusion. Plans

may not provide differing benefits to persons with ESRD "on the basis of the

existence of end stage renal disease, the need for renal dialysis, or in any other

manner." Id. The clause is grammatically challenging to interpret, because "on the

basis of" appears to apply to "the need for renal dialysis" but cannot meaningfully

apply to "in any other manner." See DaVita, Inc. v. Marietta Mem’l Hosp. Empl.

Health Benefit Plan, 978 F.3d 326, 361 (6th Cir. 2020) (Murphy, J., concurring in

part and dissenting in part) ("This list likely contains a typo because it makes no

10 sense to say ‘on the basis of . . . in any other manner.’" (ellipsis in original)). The

corresponding regulation slips in an "or" to address the grammatical issue,

prohibiting differentiation "on the basis of the existence of ESRD, or the need for

renal dialysis, or in any other manner." 42 C.F.R. § 411.161(b)(1) (emphasis

added). But we need not dwell on the nuances. Even the broadest possible reading

of the second half of the statutory text—prohibiting differentiation in the provision

of benefits for any reason and in any manner—does not change our interpretation

of the requirement as a whole.

A plan may not provide differing benefits to persons with ESRD than to

other insureds, no matter the reason and no matter the manner. For example, a

plan may not provide differing benefits to persons with ESRD simply because an

individual has ESRD, or because an individual with ESRD needs renal dialysis, or

because an individual with ESRD has a greater statistical chance of needing other

services. See 42 U.S.C. § 1395y(b)(1)(C)(ii) (prohibiting differentiation "on the

basis of the existence of end stage renal disease, the need for renal dialysis, or in

any other manner"). And a plan may not provide differing benefits to persons with

ESRD by, for example, terminating their coverage, charging higher premiums,

exacting higher co-payments, or requiring longer waiting times. 42 C.F.R.

§ 411.611(b)(2)(i)-(iii). But the pertinent question remains whether the plan

provides differing benefits to persons with ESRD than to all other insureds.

11 Because Amy’s Plan provides identical benefits, including dialysis benefits, to all

insured persons, the Plan does not run afoul of the MSP.

We do not hold that all facially neutral plans comply with the MSP. A

facially neutral provision that, in effect, operated to differentiate "between

individuals having end stage renal disease and other individuals covered by such

plan" would not comport with the MSP. 42 U.S.C. § 1395y(b)(1)(C)(ii). For

example, a plan would violate the MSP if it provided different coverage for routine

maintenance dialysis—that is, dialysis received only by persons with ESRD—than

for all other dialysis. See 42 C.F.R. § 411.161(b)(2)(v) (listing, as an example of a

prohibited differentiation, a plan’s "[f]ailure to cover routine maintenance dialysis

. . . when a plan covers other dialysis services"). So, too, would a plan violate the

MSP if it declined to cover an ESRD-specific medication even though it covered

comparable non-ESRD-specific medications. That is, provisions that affect only

those with ESRD necessarily provide differing benefits to those with ESRD as

compared to other insureds.

But Amy’s Plan has no such differentiating effect. The Plan treats all

dialysis the same, and persons with ESRD are not the exclusive recipients of

dialysis. Many persons who do not have ESRD receive dialysis as treatment for

12 acute kidney injury.1

DaVita concedes that dialysis is not exclusively a treatment for ESRD. But

DaVita emphasizes that most people who receive dialysis have ESRD, so that

Amy’s Plan has a remarkably disproportionate effect on persons with ESRD.

DaVita encourages us to hold that the MSP’s prohibition on differing treatment

bars not only actual differentiation (whether by name or by exclusive effect) but

also all provisions that have a disproportionate effect, or disparate impact, on

persons with ESRD.

In assessing whether the MSP encompasses a disparate-impact theory, we

find helpful the Sixth Circuit’s recent decision in Marietta, 978 F.3d at 347–52.

Applying the Supreme Court’s guidance in Texas Department of Housing &

Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015),

the Sixth Circuit held that the MSP encompasses a disparate-impact theory.

Marietta, 978 F.3d at 350–51. Judge Murphy disagreed with the majority’s

conclusion, writing separately to state his view that "a plan that uniformly offers

the same benefits to all groups does not violate [the MSP’s differentiation] clause."

1 In 2000, about 12,000 persons in the United States with acute kidney injury received dialysis. Pavkov ME, Harding JL, Burrows NR., Trends in Hospitalizations for Acute Kidney Injury — United States, 2000–2014, Morbidity & Mortality Wkly. Rep., March 16, 2018, 67:289–293, Table, https://www.cdc.gov/mmwr/volumes/67/wr/mm6710a2.htm. That number rose to 18,000 by 2006. Id. And in 2014, the number climbed to more than 28,000. Id.

13 Id. at 360 (Murphy, J., dissenting in part). We agree with the Sixth Circuit that the

Supreme Court’s decision in Inclusive Communities provides the appropriate

framework for considering whether a statute encompasses a disparate-impact

theory, but we disagree with the Marietta majority’s conclusion.

Inclusive Communities considered whether the Fair Housing Act ("FHA")

encompassed a disparate-impact theory of liability. 576 U.S. at 533–34. The

Court began its analysis by discussing "two other antidiscrimination statutes that

preceded it"—Title VII of the Civil Rights Act of 1964, and the Age

Discrimination in Employment Act of 1967 ("ADEA")—that the Court previously

had held encompassed disparate-impact liability. Id. at 530–33; see Griggs v.

Duke Power Co., 401 U.S. 424 (1971) (Title VII); Smith v. City of Jackson, 544

U.S. 228 (2005) (ADEA). The Court discussed the obvious similarities in text and

structure between the relevant provisions of Title VII and the ADEA, on the one

hand, and the relevant provisions of the FHA, on the other. Inclusive

Communities, 576 U.S. at 534–35. Title VII provides:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect

14 his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a) (emphases added); see Inclusive Communities, 576 U.S. at

530–31 (quoting this text). The ADEA provides:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

29 U.S.C. § 623(a) (emphases added); see Inclusive Communities, 576 U.S. at 532

(quoting this text). The first relevant FHA provision states:

It shall be unlawful for any person or other entity whose business includes engaging in residential real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin.

42 U.S.C. § 3605(a) (emphasis added); see Inclusive Communities, 576 U.S. at

534 (quoting this text). The second relevant FHA provision states that it is

unlawful:

To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or

15 deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

42 U.S.C. § 3604(a) (emphasis added); see Inclusive Communities, 576 U.S. at

533 (quoting this text).

The Court noted that the only textual difference is that Title VII and the

ADEA use the phrase "or otherwise adversely affect" while the FHA uses the

phrase "or otherwise make unavailable or deny."2 Inclusive Communities, 576

U.S. at 532–33. But the Court held that the different wording was irrelevant

because both formulations, and the word "discriminate," are "results-oriented

language," which "counsels in favor of recognizing disparate-impact liability." Id.

at 534. The Court explained further:

It is true that Congress did not reiterate Title VII’s exact language in the FHA, but that is because to do so would have made the relevant sentence awkward and unclear. A provision making it unlawful to "refuse to sell[,] ... or otherwise [adversely affect], a dwelling to any person" because of a protected trait would be grammatically obtuse, difficult to interpret, and far more expansive in scope than Congress likely intended.

Id. at 535 (alterations and ellipsis in original).

2 In its briefing to us, DaVita also cites the disparate-impact provision in the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112. But that statute’s text, which prohibits many forms of "discriminat[ion]," does not differ meaningfully from the relevant text of Title VII or the ADEA. Id. § 12112(a); see also id. § 12112(b)(3) (defining ways that an entity may impermissibly discriminate to include "utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability" (emphasis added)).

16 The Supreme Court next found later amendments to the FHA, enacted in

light of intervening court decisions, to be of "crucial importance." Id. In

particular, "all nine Courts of Appeals to have addressed the question had

concluded that the Fair Housing Act encompassed disparate-impact claims." Id.

When Congress amended the FHA, it chose to retain the relevant statutory text

and, moreover, added three new clauses that made sense only if the FHA

encompassed a disparate-impact theory of liability. Id. at 536–39.

Finally, the Court held that "[r]ecognition of disparate-impact claims is

consistent with the FHA’s central purpose." Id. at 539. "The FHA, like Title VII

and the ADEA, was enacted to eradicate discriminatory practices within a sector of

our Nation’s economy." Id.; see also id. at 528–30 (recounting the long history of

discriminatory housing).

The Court made clear that its conclusion that the FHA encompassed a

disparate-impact theory resulted from considering all of the factors just discussed:

"The Court holds that disparate-impact claims are cognizable under the Fair

Housing Act upon considering its results-oriented language, the Court’s

interpretation of similar language in Title VII and the ADEA, Congress’

ratification of disparate-impact claims in 1988 against the backdrop of the

unanimous view of nine Courts of Appeals, and the statutory purpose." Id. at 545–

17 46; see also Smith, 544 U.S. at 237 (noting the unanimous holdings of the courts of

appeal that the ADEA's prohibition encompasses disparate impacts).

Applying the teaching of Inclusive Communities, we begin, as did the Sixth

Circuit, with the statutory text:

[A group health plan] may not differentiate in the benefits it provides between individuals having end stage renal disease and other individuals covered by such plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner.

42 U.S.C. § 1395y(b)(1)(C)(ii) (emphases added). The Sixth Circuit’s majority

focused exclusively on the final five words of the provision: "or in any other

manner." Marietta, 978 F.3d at 348–51. The court noted that, like the important

statutory passage in the FHA, that passage is "at the end of a series of prohibitions

that deal with disparate treatment" and "is exceedingly broad." Id. at 350

(emphasis omitted). From those observations, the Sixth Circuit concluded that the

MSP’s "non-differentiation provision permits a disparate impact claim." Id. at 351.

We respectfully suggest that the Marietta majority’s analysis of whether the

statute gives rise to a disparate-impact claim was incomplete. Not every list of

actions followed by a broad catch-all clause means that Congress intended to

encompass a disparate-impact theory. Inclusive Communities requires both a more

detailed study of the statutory text and a consideration of other relevant factors.

First, continuing with the textual analysis, a different aspect of the provision

strongly suggests that Congress did not intend to create a disparate-impact theory

18 of liability. In particular, Congress chose to prohibit actions that "differentiate"

rather than "discriminate." Just as the FHA’s use of the word "discriminate"

suggested disparate-impact liability to the Supreme Court in light of the identical

wording of Title VII and the ADEA, Inclusive Communities, 576 U.S. at 534,

Congress’ decision not to use the word "discriminate" in the MSP strongly

suggests that it did not intend to encompass disparate-impact liability. The

presumption that different words carry different meanings is ordinarily weak when

applied, as here, to different Acts, because "[w]e do not presume that when

Congress legislates it has firmly in mind every term of every pre-existing statute."

Agredano v. Mutual of Omaha Cos., 75 F.3d 541, 544 (9th Cir. 1996). But

Congress certainly was aware of the important term "discriminate," which long has

carried a particular meaning. We find it significant that Congress chose to avoid

that common term in favor of a different verb, "differentiate." See Hall v. United

States, 566 U.S. 506, 516 (2012) ("We assume that Congress is aware of existing

law when it passes legislation." (internal quotation marks omitted)); see also Bare

v. Barr, 975 F.3d 952, 968 (9th Cir. 2020) ("We must presume that Congress

intended a different meaning when it uses different words in connection with the

same subject." (internal quotation marks omitted)).

Read as a whole, then, the statutory text does not suggest that Congress

intended to sweep in actions that disproportionately affect persons with ESRD

19 under a disparate-impact theory. We may agree with the Sixth Circuit that the

phrase "or in any other manner" is "results-oriented" in a sense. Marietta, 978 F.3d

at 350 & n.15. But the statutory text makes clear that the pertinent inquiry remains

whether the plan's provisions "result" in different benefits for persons with ESRD,

not whether the plan's provisions disproportionately affect persons with ESRD or

otherwise "discriminate" against persons with ESRD.

Nor is there any indication that Congress acquiesced in a disparate-impact

theory that has been widely adopted by the federal courts. If anything, the MSP’s

statutory history and additional provisions suggest the opposite conclusion. For

example, until just a couple of months ago, no court had held that the MSP

encompasses a disparate-impact theory of liability. See, e.g., Nat'l Renal All., LLC

v. Blue Cross & Blue Shield of Ga., Inc., 598 F. Supp. 2d 1344, 1354–55 (N.D.

Ga. 2009) (rejecting, as failing to state a claim, an assertion that a plan’s uniform

reimbursement for all dialysis constituted differentiation under the MSP).

Additionally, and unlike the FHA, no other provision in the MSP assumes that the

differentiation provision encompasses disparate-impact liability. Indeed, nearly

every provision in the MSP concerns topics other than ESRD. In sum, one factor

that was "of crucial importance," Inclusive Communities, 576 U.S. at 535, in

concluding that the FHA encompasses disparate impacts is, at best, completely

absent with respect to the MSP.

20 Finally, we consider the statute’s "central purpose." Id. at 539. This factor,

too, strongly suggests that Congress did not intend a disparate-impact theory of

liability in the MSP. All of the anti-discrimination statutes cited by DaVita and the

Sixth Circuit sought to address, as their sole or central purpose, a history of

discrimination against a minority class of persons. As their titles suggest, the Fair

Housing Act, Title VII of the Civil Rights Act, the Age Discrimination in

Employment Act, and the Americans with Disabilities Act all aimed, as their

central purpose, to address longstanding and entrenched discriminatory practices.

By sharp contrast, there is little evidence, either in the legislative history of

the MSP or in other sources, that persons with ESRD have been subjected to

historical or entrenched societal discrimination akin to the discrimination faced by

the classes of persons protected by the FHA, Title VII, the ADEA, and the

ADA.3 As we hold in DaVita v. Virginia Mason Memorial Hospital, No. 19-

35692, - F.3d – (9th Cir. 2020), ensuring equal health-care benefits for insureds

who have ESRD, in limited circumstances, is one of the purposes of the Medicare

3 DaVita directs us primarily to a Senate Report in 1981—eight years before Congress added the differentiation provision—that expressed "concern[]" that employers might engage in "job discrimination" against persons entitled to Medicare. S. Rep. No. 97-139, at 736 (1981). Congress directed the relevant Secretary to "investigate promptly complaints of this nature[] and report his findings to the Congress." Id. That level of concern pales in comparison to, for example, Congress’ deep concern with the entrenched historical discrimination in housing on the basis of race. Inclusive Communities, 576 U.S. at 528–30.

21 as Secondary Payer provisions. But the tightly cabined nature of the anti-

differentiation provision of the MSP suggests a carefully circumscribed concern,

not a remedy for widespread injustice. Moreover, the "central purpose," Inclusive

Communities, 576 U.S. at 539, of the MSP provisions remains a congressional aim

to save Medicare money. See Zinman v. Shalala, 67 F.3d 841, 845 (9th Cir. 1995)

(noting that "the overarching statutory purpose" of the Medicare as Secondary

Payer provisions is to "reduc[e] Medicare costs").

Although this case concerns a plan’s reimbursement rates for dialysis, a

disparate-impact theory presumably could give rise to a broad array of challenges.

Notably, approximately half of persons with ESRD have diabetes or cardiovascular

disease, and cardiovascular disease "contributes to more than half of all deaths

among patients with ESRD." Kidney Disease Statistics for the United States, Nat’l

Insts. of Health (December 2016), https://www.niddk.nih.gov/health-

information/health-statistics/kidney-disease. Accordingly, a plan that provided less

preferential coverage for those ailments might disproportionately affect persons

with ESRD. Embracing a disparate-impact theory of liability would create

uncertainty for insurers as to permissible provisions related to those illnesses. We

doubt that Congress intended, in a statute aimed almost entirely at saving Medicare

money, to require group health plans to ensure that its plans have no

disproportionate effects on persons with ESRD. Rather, we conclude that

22 Congress meant what it said: a plan may not "differentiate in the benefits it

provides between individuals having [ESRD] and other individuals covered by

such plan." 42 U.S.C. § 1395y(b)(1)(C)(ii).

In sum, consideration of the relevant factors described in Inclusive

Communities confirms our reading of the statutory text. Congress prohibited

group health plans from offering different benefits to persons with ESRD than to

others, but it did not bar other differences that merely have a disproportionate

effect on persons with ESRD.

Although congressional intent is clear, we also note that the MSP’s

implementing regulations provide no support for a disparate-impact claim. In both

Smith, 544 U.S. at 239, and Griggs, 401 U.S. at 433–34, the Supreme Court

interpreted the pertinent statutory provision as encompassing a disparate-impact

theory partly because the relevant agency had interpreted the statute in that

manner. Similarly, although the Court in Inclusive Communities did not discuss

the agency’s interpretation in its analysis, the Court noted at the outset that "the

Secretary of Housing and Urban Development issued a regulation interpreting the

FHA to encompass disparate-impact liability," including by establishing a multi-

step "burden-shifting framework." 576 U.S. at 527 (abbreviation omitted).

23 The relevant regulations here tell a different story. Perhaps most

convincingly, the agency expressly approved a plan provision that would have a

clearly disproportionate effect on those with ESRD:

(c) Uniform Limitations on particular services permissible. A plan is not prohibited from limiting covered utilization of a particular service as long as the limitation applies uniformly to all plan enrollees. For instance, if a plan limits its coverage of renal dialysis sessions to 30 per year for all plan enrollees, the plan would not be differentiating in the benefits it provides between plan enrollees who have ESRD and those who do not.

42 C.F.R. § 411.161(c). Persons with ESRD typically require three dialysis

sessions a week, so the hypothetical limitation would apply to all persons with

ESRD. Persons with acute kidney injury, by contrast, rarely require 30 sessions of

dialysis. In other words, even though the regulation’s hypothetical limitation

would have an overwhelmingly disparate effect on persons with ESRD, the agency

expressly approved the limitation as consistent with the MSP’s differentiation

provision.

Similarly, the agency’s illustrative examples in § 411.161(b)(2)4 all comport

with our understanding of the statutory text. For example, a group health plan may

4 The regulation provides:

(2) [Group health plan] actions that constitute differentiation in plan benefits (and that may also constitute "taking into account" Medicare eligibility or entitlement) include, but are not limited to the following: (continued)

24 not provide "less comprehensive health plan coverage" to "persons who have

ESRD" and may not charge "individuals with ESRD higher premiums." 42 C.F.R.

§ 411.161(b)(2)(ii)-(iii). As is most relevant here, a plan may not decline to cover

"routine maintenance dialysis" if it covers "other dialysis services," and a plan

must pay identically for dialysis for persons with ESRD as for dialysis for persons

who do not have ESRD. Id. § 411.161(b)(2)(iv)-(v). That is, a plan may not cover

(i) Terminating coverage of individuals with ESRD, when there is no basis for such termination unrelated to ESRD (such as failure to pay plan premiums) that would result in termination for individuals who do not have ESRD.

(ii) Imposing on persons who have ESRD, but not on others enrolled in the plan, benefit limitations such as less comprehensive health plan coverage, reductions in benefits, exclusions of benefits, a higher deductible or coinsurance, a longer waiting period, a lower annual or lifetime benefit limit, or more restrictive preexisting illness limitations.

(iii) Charging individuals with ESRD higher premiums.

(iv) Paying providers and suppliers less for services furnished to individuals who have ESRD than for the same services furnished to those who do not have ESRD, such as paying 80 percent of the Medicare rate for renal dialysis on behalf of a plan enrollee who has ESRD and the usual, reasonable and customary charge for renal dialysis on behalf of an enrollee who does not have ESRD.

(v) Failure to cover routine maintenance dialysis or kidney transplants, when a plan covers other dialysis services or other organ transplants.

42 C.F.R. § 411.161(b).

25 an exclusively-ESRD treatment differently than a comparable non-ESRD

treatment; but nothing suggests that a plan must cover all dialysis treatments to the

same extent as, say, chemotherapy or insulin treatments.

We acknowledge one potential exception to the foregoing analysis. One of

the regulation’s examples of impermissible differentiation is a plan’s failure to

cover kidney transplants when the plan covers other organ transplants. Id.

§ 411.161(b)(2)(v). DaVita cites an article published in 2015 on the topic of

kidney transplants, Educational Guidance on Patient Referral to Kidney

Transplantation, U.S. Dept. of Health & Hum. Servs., (Sept. 2015),

https://optn.transplant.hrsa.gov/resources/guidance/educational-guidance-on-

patient-referral-to-kidney-transplantation. "With advances in surgical technique,

immunosuppression, and post-transplant care, criteria for kidney transplantation

have evolved dramatically." Id. Given the long waiting times for finding a

suitable kidney donor, the article recommends that doctors consider referring some

patients, especially those with rapidly progressive kidney disease, for evaluation

for a kidney transplant even if the patient is in stage 4 of chronic kidney disease,

one stage shy of ESRD (stage 5). Id. DaVita asserts that some patients receive a

kidney transplant before their disease progresses to ESRD. The regulation

therefore suggests, in DaVita’s view, that a disparate-impact theory is available.

26 The regulatory history does not reveal, when the agency promulgated the

regulation in 1995, whether persons with stage 4 kidney disease received

transplants; if so, whether the agency was aware of that fact; and if so, what the

agency’s reason for including the example was. We need not investigate those

questions, though, because even if we assume that the agency included one

example that would support a disparate-impact claim, it suggests, at most, that the

regulation is inconsistent with respect to the availability of a disparate-impact

claim. See Marietta, 978 F.3d at 351 ("Put simply, the non-differentiation

regulations do more to confuse than to clarify."). Whether we view the

implementing regulations for the MSP as foreclosing entirely a disparate-impact

theory or as inconsistent on the question, those regulations are wholly unlike the

implementing regulations for Title VII, the ADEA, and the FHA, which clearly

allowed disparate-impact claims. The regulations therefore provide no support for

a disparate-impact claim.

In conclusion, a plan that provides identical benefits to someone with ESRD

as to someone without ESRD does not "differentiate" between those two classes.

That simplistic approach must yield for treatments that apply exclusively to ESRD

patients, because differential coverage of ESRD-specific treatments is no different

than differential treatment of persons with ESRD. But for treatments that apply

27 both to those with ESRD and those without ESRD, a plan’s provision of identical

benefits does not "differentiate" on any basis at all.

Because Amy’s Plan provides identical benefits, including dialysis benefits,

to persons with ESRD as to all other insureds and does not consider an individual’s

eligibility for Medicare, Amy’s Plan comports with the MSP.5

B. ERISA Claims

ERISA authorizes a beneficiary to bring claims seeking "to recover benefits

due to him under the terms of his plan." 29 U.S.C. § 1132(a)(1)(B). Separate

ERISA provisions authorize a beneficiary to bring equitable claims, seeking either

injunctive or equitable relief. Id. § 1132(a)(1)(A) & (a)(3). DaVita asserts both

types of claims.

As DaVita acknowledges, it cannot bring ERISA claims on its own behalf.

See id. § 1132(a)(1)(B) (allowing a claim for benefits "by a participant or

beneficiary"); id. § 1132(a)(3) (allowing equitable claims "by a participant,

beneficiary, or fiduciary"); Spinedex Physical Therapy USA Inc. v. United

Healthcare of Ariz., Inc., 770 F.3d 1282, 1289 (9th Cir. 2014) ("As a non-

participant health care provider, Spinedex cannot bring claims for benefits on its

5 Because both the 2016 version and the 2017 version of Amy’s Plan comported with the MSP, it is irrelevant that the 2017 amendment modified only the dialysis provisions of Amy’s Plan. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995) ("[P]lan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.").

28 own behalf."). DaVita seeks, instead, to bring claims on behalf of Patient 1, who

signed a form assigning some causes of action to DaVita.

The assignment form plainly encompasses a claim seeking to recover

benefits, so DaVita may bring that claim. See Spinedex, 770 F.3d at 1288–91

(holding that a valid assignment of rights allows a third party to bring the

beneficiary’s claim). But the complaint fails to state a claim. All of DaVita’s

arguments stem from its argument, which we reject, that the Plan violates the MSP.

Under the clear terms of the Plan, Patient 1 received all the "benefits due to him [or

her] under the terms of [the] plan." 29 U.S.C. § 1132(a)(1)(B).

We conclude that DaVita may not bring the equitable claims, however,

because the assignment form did not encompass an assignment of equitable claims.

"The question of what rights and remedies pass with a given assignment depends

upon the intent of the parties." DB Healthcare, LLC v. Blue Cross Blue Shield of

Ariz., Inc., 852 F.3d 868, 876 (9th Cir. 2017) (internal quotation marks omitted).

To make that determination, "we look at the language and context of the

authorization[]." Id. at 877.

By signing the assignment form, Patient 1 agreed to thirteen numbered

items. The fifth item included this sentence:

I hereby assign to DaVita all of my right, title and interest in any cause of action and/or any payment due to me (or my estate) under any employee benefit plan, insurance plan, union trust fund, or similar plan ("Plan"), under which I am a participant or beneficiary, for services,

29 drugs or supplies provided by DaVita to me for purposes of creating an assignment of benefits under ERISA or any other applicable law.

The Sixth Circuit recently held that a nearly identical assignment did not

assign equitable claims, and we agree with its analysis on this point. Marietta, 978

F.3d at 344–45. The wording of the assignment itself suggests only an assignment

of a claim for benefits: Patient 1 assigned "all of [Patient 1’s] right, title and

interest in any cause of action . . . under any employee benefit plan . . . for

purposes of creating an assignment of benefits under ERISA or any other

applicable law." (Emphasis added). The most natural reading of that sentence is

that Patient 1 assigned all possible causes of action for the payment of benefits.

The assignment of "any cause of action" is not superfluous because it refers to the

causes of action available "under ERISA or any other applicable law," such as state

contract law.

The broader context of the sentence confirms that interpretation. The title of

numbered item five is "Assignment of Benefits; Lien." And all of the remaining

sentences of the same paragraph—such as how the patient should handle

payments, the "automatic lien," and the pursuit of "collections"—pertain strictly to

payments. Zooming out further still, the overall purpose of the document similarly

focuses exclusively on responsibility for payments, affirming that the patient "is

personally responsible for payments"; noting that the patient is "assigning rights to

payments from my insurer"; and "authorizing DaVita to obtain the necessary

30 information to obtain such payments." (Emphases added.) As in Spinedex, 770

F.3d at 1292, "the entirety of the Assignment indicates that [Patient 1] intended to

assign to [DaVita] only [his or her] rights to bring suit for payment of benefits."

See also DB Healthcare, 852 F.3d at 876–77 (holding that an assignment implicit

in "I Hereby Authorize My Insurance Benefits to Be Paid Directly to the

Physician" encompassed only a claim for benefits and not equitable claims).

AFFIRMED.

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