(Slip Opinion) OCTOBER TERM, 2021 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MARIETTA MEMORIAL HOSPITAL EMPLOYEE 

HEALTH BENEFIT PLAN ET AL. v. DAVITA INC. ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 20–1641. Argued March 1, 2022—Decided June 21, 2022 

Petitioner Marietta Memorial Hospital Employee Health Benefit Plan is

an employer-sponsored group health plan that offers all of its participants the same limited coverage for outpatient dialysis. Respondent

DaVita—a major provider of dialysis services—sued the Marietta 

Plan, arguing that the Plan’s limited coverage for outpatient dialysis 

violated the Medicare Secondary Payer statute. The statute makes 

Medicare a “secondary” payer to an individual’s existing insurance 

plan for certain medical services, including dialysis, when that plan

already covers the same services. 42 U. S. C. §§1395y(b)(1)(C), (2), (4). 

To prevent plans from circumventing their primary-payer obligation

for end-stage renal disease treatment, the statute imposes two constraints relevant here. First, 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.” §1395y(b)(1)(C)(ii). Second, a plan “may not take into account that an individual is entitled to or eligible for” Medicare due to 

end-stage renal disease. §1395y(b)(1)(C)(i); see §426–1. The District 

Court dismissed DaVita’s claims that the Marietta Plan violated both 

statutory constraints. A divided panel of the U. S. Court of Appeals 

for the Sixth Circuit reversed. Among other things, the Court of Appeals ruled that the statute authorized disparate-impact liability and 

that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease. 

Held: Section 1395y(b)(1)(C) does not authorize disparate-impact liability, and the Marietta Plan’s coverage terms for outpatient dialysis do 

not violate §1395y(b)(1)(C) because those terms apply uniformly to all 
2 MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH

BENEFIT PLAN v. DAVITA INC.

Syllabus

covered individuals. Pp. 4–7. 

 (a) Section 1395y(b)(1)(C)(ii) prohibits a plan from differentiating in 

benefits between individuals with and without end-stage renal disease. Because the Marietta Plan’s terms apply uniformly to individuals with and without end-stage renal disease, the Plan does not “differentiate in the benefits it provides between individuals” with and 

without end-stage renal disease. DaVita argues that the statute authorizes liability even when a plan limits benefits in a uniform way if

the limitation on benefits has a disparate impact on individuals with 

end-stage renal disease. But the text of the statute cannot be read to 

encompass a disparate-impact theory. The statutory provision simply 

coordinates payments between group health plans and Medicare; the 

statute does not dictate any particular level of dialysis coverage. 

Pp. 4–7.

 (b) DaVita’s contention that a plan that provides limited coverage 

for outpatient dialysis impermissibly “take[s] into account” the Medicare eligibility of plan participants with end-stage renal disease fails 

for the same reason. Because the Marietta Plan provides the same 

outpatient dialysis benefits to all Plan participants, whether or not a 

participant is entitled to or eligible for Medicare, the Plan cannot be 

said to “take into account” whether its participants are entitled to or 

eligible for Medicare. Pp. 7.

978 F. 3d 326, reversed and remanded.

 KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, BREYER, ALITO, GORSUCH, and BARRETT JJ., joined. 

KAGAN, J., filed an opinion dissenting in part, in which SOTOMAYOR, J., 

joined. 
 

 

 

_________________ 

_________________ 

Cite as: 596 U. S. ____ (2022) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 20–1641 

MARIETTA MEMORIAL HOSPITAL EMPLOYEE 

HEALTH BENEFIT PLAN, ET AL., PETITIONERS 

v. DAVITA INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 21, 2022]

 JUSTICE KAVANAUGH delivered the opinion of the Court. 

The question in this case is whether a group health plan

that provides limited benefits for outpatient dialysis—but 

does so uniformly for all plan participants—violates the

Medicare Secondary Payer statute. We agree with petitioner Marietta and the United States as amicus curiae that 

the answer is no. We therefore reverse the judgment of the

U. S. Court of Appeals for the Sixth Circuit and remand the 

case for further proceedings consistent with this opinion. 

I 

A 

Medicare provides health insurance coverage for those 

who are 65 or over, or are disabled. In 1972, Congress extended Medicare coverage to individuals with end-stage renal disease, regardless of age or disability. See Social Security Amendments of 1972, §299I, 86 Stat. 1463; 42

U. S. C. §426–1. That benefit now covers hundreds of thousands of Americans with end-stage renal disease. In the 

aggregate, the costs of healthcare for individuals with endstage renal disease are high, and Medicare spends about 
 

2 MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 

 BENEFIT PLAN v. DAVITA INC. 

Opinion of the Court 

$50 billion annually on treatments for those individuals. 

During the initial years of the Medicare program after its

enactment in 1965, Medicare acted as the first payer for 

many medical services, regardless of whether a Medicare

beneficiary was also covered under another insurance plan,

such as an employer-sponsored group health plan. In 1980 

and 1981, in part due to rising Medicare costs, Congress enacted and amended the Medicare Secondary Payer statute.

That statute as amended makes Medicare a “secondary” 

payer to an individual’s existing insurance plan for certain

medical services, including dialysis, when that plan already 

covers the same services. See Medicare and Medicaid 

Amendments of 1980, §953, 94 Stat. 2647; Medicare and 

Medicaid Amendments of 1981, §2146, 95 Stat. 800; 42

U. S. C. §§1395y(b)(1)(C), (2), (4).

Given the significant costs of healthcare for those with 

end-stage renal disease, Congress recognized that a plan

might try to circumvent the statute’s primary-payer obligation by denying or reducing coverage for an individual who 

has end-stage renal disease, thereby forcing Medicare to incur more of those costs. To prevent such circumvention, the 

statute imposed two specific constraints on group health

plans. First, 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.” §1395y(b)(1)(C)(ii). 

Second, as relevant here, a plan “may not take into account

that an individual is entitled to or eligible for” Medicare due

to end-stage renal disease. §1395y(b)(1)(C)(i); see §426−1. 

B 

DaVita is one of the two major dialysis providers in the 

United States. DaVita provides dialysis to hundreds of 

thousands of individuals each year, including individuals

insured by their employers’ group health plans. 
 

Cite as: 596 U. S. ____ (2022) 3 

Opinion of the Court 

The Marietta Memorial Hospital Employee Health 

Benefit Plan is an employer-sponsored group health plan. 

The Plan offers the same terms of coverage for outpatient 

dialysis to all of its participants. But under the Plan, outpatient dialysis services are subject to relatively limited reimbursement rates. 

In 2018, DaVita sued the Plan, arguing that the Plan’s

limited coverage for outpatient dialysis both (i) differentiates between individuals with and without end-stage renal

disease and (ii) takes into account the Medicare eligibility 

of individuals with end-stage renal disease in violation of 

the Medicare Secondary Payer statute. §1395y(b)(1)(C).

The District Court dismissed DaVita’s claims, concluding

that the Plan does not violate the anti-differentiation or 

take-into-account provisions of the Medicare Secondary 

Payer statute because the Plan’s terms, including its terms 

for outpatient dialysis treatments, apply uniformly to all

Plan participants. 

A divided panel of the U. S. Court of Appeals for the Sixth

Circuit reversed. See 978 F. 3d 326 (2020). Among other

things, the Court of Appeals ruled that the statute authorized disparate-impact liability, and the Court concluded

that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease. 

Judge Eric Murphy dissented in relevant part. He reasoned that the Plan’s terms do not violate the statute because the Plan “offers the same benefits to all participants.” 

Id., at 358 (opinion concurring in judgment in part and dissenting in part).

The Sixth Circuit’s interpretation of the Medicare Secondary Payer statute departed from the holdings of district

courts that had considered the question. See DaVita, Inc. 

v. Amy’s Kitchen, Inc., 379 F. Supp. 3d 960 (ND Cal. 2019); 

Dialysis of Des Moines, LLC v. Smithfield Foods Healthcare 

Plan, 2019 WL 8892581 (ED Va., Aug. 5, 2019); National 

Renal Alliance, LLC v. Blue Cross & Blue Shield of Georgia, 
 

4 MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 

 BENEFIT PLAN v. DAVITA INC. 

Opinion of the Court 

Inc., 598 F. Supp. 2d 1344 (ND Ga. 2009). Moreover, several weeks after the Sixth Circuit’s decision, the Ninth Circuit agreed with Judge Murphy’s dissent and largely rejected the Sixth Circuit’s analysis. See DaVita Inc. v. Amy’s 

Kitchen, Inc., 981 F. 3d 664 (2020).

This Court granted certiorari to resolve the disagreement

between the Courts of Appeals. 595 U. S. ___ (2021). 

II 

A 

We first consider DaVita’s differentiation argument. To 

reiterate, the relevant statutory provision states: 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).

That statutory language prohibits a plan from differentiating in benefits between individuals with and without endstage renal disease. For example, a group health plan may 

not single out plan participants with end-stage renal disease by imposing higher deductibles on them, or by covering

fewer services for them. See 42 CFR §§411.161(b)(2)(i)–(iv). 

If a plan does not differentiate in the benefits provided to

individuals with and without end-stage renal disease, then 

a plan has not violated that statutory provision, and the differentiation inquiry ends there.1 

—————— 1 If and only if a plan differentiates in benefits between those with and

those without end-stage renal disease, the next question would be

whether the plan differentiates “on the basis of ” (i) the existence of the

disease, (ii) the need for renal dialysis, or (iii) in any other manner. 42 

U. S. C. §1395y(b)(1)(C)(ii). Those three circumstances, especially the 

somewhat ungrammatically phrased catchall “in any other manner,” appear to cover the waterfront of possible bases on which a plan might differentiate in the benefits provided to those with end-stage renal disease.

In other words, if there is differentiation, the differentiation is likely on

an impermissible basis. Therefore, the only meaningful question under 
Cite as: 596 U. S. ____ (2022) 5 

Opinion of the Court 

The Marietta Plan provides the same benefits, including

the same outpatient dialysis benefits, to individuals with

and without end-stage renal disease. Indeed, DaVita does 

not dispute that the Plan’s terms apply uniformly to all

Plan participants. Therefore, the Plan does not “differentiate in the benefits it provides between individuals” with 

and without end-stage renal disease. 42 U. S. C. 

§1395y(b)(1)(C)(ii).

In response, DaVita primarily argues that the statute authorizes liability even when a plan limits benefits in a uniform way if the limitation on benefits has a disparate impact on individuals with end-stage renal disease. 

To begin with, the text of the statute cannot be read to 

encompass a disparate-impact theory. That text requires

inquiry into whether a plan provides different benefits to 

(i) those with end-stage renal disease and (ii) those without

end-stage renal disease. The text does not ask about “the 

effects of non-differentiating plan terms that treat all individuals equally.” 978 F. 3d, at 363 (opinion of Murphy, J.); 

see also Amy’s Kitchen, 981 F. 3d, at 674−675. In light of 

that plain text, it comes as no surprise that the Centers for 

Medicare and Medicaid Services have never adopted a disparate-impact theory in their longstanding regulations implementing this statute.

The disparate-impact theory not only is atextual but also

would be all but impossible to fairly implement. The premise of the disparate-impact theory is that the plan’s benefits

for outpatient dialysis are inadequate. But what level of 

benefits would be adequate, and how would courts determine the level of benefits that qualifies as adequate? 

Neither the statute nor DaVita offers a basis for determining when coverage for outpatient dialysis could be considered inadequate. And neither the statute nor DaVita 

—————— 

this statutory provision appears to be whether the plan differentiates in

benefits between those with and those without end-stage renal disease. 
 

 

6 MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 

 BENEFIT PLAN v. DAVITA INC. 

Opinion of the Court 

supplies an objective benchmark or comparator against 

which to measure a plan’s coverage for outpatient dialysis. 

Absent some benchmark or comparator, courts would 

have great difficulty trying to make an apples-toapples comparison of a plan’s coverage for outpatient dialysis against its coverage for other services. Group health

plans cover services for many different health issues at varied rates. Those rates may reflect negotiations with third

parties, the needs of a particular plan’s beneficiaries, and

other factors such as geography. Courts would be entirely

at sea in trying to determine an appropriate benchmark or 

comparator for outpatient dialysis. Put simply, DaVita’s 

approach is a prescription for judicial and administrative 

chaos, and further demonstrates that DaVita’s disparateimpact theory is not a correct interpretation of the statute.2 

DaVita’s position would ultimately require group health

plans to maintain some (undefined) minimum level of benefits for outpatient dialysis. But this statutory provision

simply coordinates payments between group health plans 

and Medicare. As the Government itself acknowledges, the 

statute does not dictate any particular level of dialysis coverage by a group health plan. See Brief for United States 

as Amicus Curiae 13. If Congress wanted to mandate that 

group health plans provide particular benefits, or to require

that group health plans ensure parity between different

kinds of benefits, Congress knew how to write such a law.

It did not do so in this statute. To the extent that Congress 

—————— 2DaVita’s related proxy theory—that singling out outpatient dialysis

is simply a proxy for singling out individuals with end-stage renal disease because those individuals disproportionately receive outpatient dialysis—likewise finds no support in the statutory text. The statute requires that a plan provide the same dialysis benefits regardless of 

whether an individual has end-stage renal disease. If a plan provides

the same benefits to all individuals, the plan does not “differentiate in 

the benefits it provides” to individuals with and without end-stage renal 

disease. §1395y(b)(1)(C)(ii) (emphasis added). This statute is a coordination-of-benefits statute, not a traditional antidiscrimination statute. 
Cite as: 596 U. S. ____ (2022) 7 

Opinion of the Court 

wants to create such a system going forward, Congress of

course may do so.

In sum, the Marietta Plan does not “differentiate in the 

benefits it provides” to those with end-stage renal disease 

and those without end-stage renal disease. 

B 

DaVita also contends that a plan that provides limited

coverage for outpatient dialysis impermissibly “take[s] into 

account” the Medicare eligibility of plan participants with 

end-stage renal disease in violation of the statute. To reiterate, that statutory provision states that a plan “may not

take into account that an individual is entitled to or eligible 

for” Medicare. 42 U. S. C. §1395y(b)(1)(C)(i); see also §426– 

1. For example, a plan may not terminate coverage, limit 

coverage, or charge higher premiums for an individual who 

has Medicare coverage due to end-stage renal disease. See 

42 CFR §§411.108(a)(3), (5)−(6).

As already discussed, the Marietta Plan’s terms, including its terms of coverage for outpatient dialysis, are uniform

for all individuals. Because the Plan provides the same outpatient dialysis benefits to all Plan participants, whether or 

not a participant is entitled to or eligible for Medicare, the

Plan cannot be said to “take into account” whether its participants are entitled to or eligible for Medicare. 

* * * 

Because the Marietta Plan’s terms as relevant here apply

uniformly to all covered individuals, the Plan does not “differentiate in the benefits it provides” to individuals with

end-stage renal disease or “take into account” whether an

individual is entitled to or eligible for Medicare. We therefore reverse the judgment of the U. S. Court of Appeals for

the Sixth Circuit and remand the case for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 596 U. S. ____ (2022) 1 

KAGAN, J., dissenting in part 

SUPREME COURT OF THE UNITED STATES 

No. 20–1641 

MARIETTA MEMORIAL HOSPITAL EMPLOYEE 

HEALTH BENEFIT PLAN, ET AL., PETITIONERS 

v. DAVITA INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 21, 2022] 

JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR joins,

dissenting in part. 

Today the Court crafts for the Medicare Secondary Payer

Act (MSPA) a massive and inexplicable workaround. The 

MSPA instructs that 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). The majority holds

that the plan here does not so “differentiate” because it 

draws distinctions only between dialysis and other treatments—not between individuals with end stage renal disease and individuals without it. See ante, at 6, n. 2. That 

conclusion flies in the face of both common sense and the 

statutory text.*

One fact is key to understanding this case: Outpatient dialysis is an almost perfect proxy for end stage renal disease. 

Virtually everyone with end stage renal disease—and 

—————— 

*Like the majority, I am unpersuaded by DaVita’s arguments concerning disparate-impact liability and the MSPA’s separate take-into-account clause. See ante, at 5, 7. But I part ways with the majority as to 

DaVita’s “proxy” theory (which the majority relegates to a footnote). See 

ante, at 6, n. 2. 
 

2 MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 

 BENEFIT PLAN v. DAVITA INC. 

KAGAN, J., dissenting in part 

hardly anyone else—undergoes outpatient dialysis.

Ninety-seven percent of people diagnosed with end stage renal disease—all those who do not obtain a preemptive kidney transplant—undergo dialysis. See National Institutes 

of Health, United States Renal Data System, 2021 Ann. 

Data Rep.: End Stage Renal Disease, ch. 1, figure 1.2, 

https://adr.usrds.org/2021/end-stage-renal-disease. And 

99.5% of DaVita’s outpatient dialysis patients have or develop end stage renal disease. See Brief for Respondents 6. 

Because that is so, common sense suggests that we

should not care whether a health plan differentiates in benefits by targeting people with end stage renal disease, or 

instead by targeting the use of dialysis. When “status and 

conduct” are proxies for each other, “[o]ur decisions have 

declined to distinguish” between them. Christian Legal 

Soc. Chapter of Univ. of Cal., Hastings College of Law v. 

Martinez, 561 U. S. 661, 689 (2010). So, for example, we 

have explained that a penalty for “homosexual conduct” is

a penalty for “homosexual persons.” Lawrence v. Texas, 539 

U. S. 558, 575 (2003). And likewise, a “tax on wearing yarmulkes is a tax on Jews.” Bray v. Alexandria Women’s 

Health Clinic, 506 U. S. 263, 270 (1993). The same goes

here: A reimbursement limit for outpatient dialysis is in reality a reimbursement limit for people with end stage renal 

disease. And so a plan singling out dialysis for disfavored

coverage “differentiate[s] in the benefits it provides between individuals having end stage renal disease and other 

individuals.” §1395y(b)(1)(C)(ii). That is so even if, as petitioner Marietta notes, dialysis is also a treatment for some

miniscule number of people with acute kidney injury. See 

Reply Brief 13. That a proxy is only 99.5% (not 100%) accurate should make no difference. A tax on yarmulkes remains a tax on Jews, even if friends of other faiths might 

occasionally don one at a Bar Mitzvah. 

And if common sense were not enough, statutory text

would come to the rescue. Congress was well aware of the 
Cite as: 596 U. S. ____ (2022) 3 

KAGAN, J., dissenting in part 

relationship between end stage renal disease and dialysis—

and the text it wrote reflects that knowledge. The statute 

proscribes not just differentiation “on the basis of the existence of end stage renal disease,” but also “on the basis of . . . 

the need for renal dialysis, or in any other manner.” 

§1395y(b)(1)(C)(ii). The back half of that provision prevents 

exactly the circumvention the majority today allows. It 

bars plans from differentiating between people with and

without end stage renal disease even when that differentiation is accomplished indirectly—by targeting their treatment, or by relying on some other proxy for the condition. 

So contra the majority, the statutory text does indeed prohibit differentiation as to services—and not only as to individuals. See ante, at 6, n. 2. 

That reading also fits with the statute’s purpose. As the 

majority recognizes, the MSPA’s renal disease provisions 

were designed to prevent plans from foisting the cost of dialysis onto Medicare. See ante, at 2. Yet the Court now 

tells plans they can do just that, so long as they target dialysis, rather than the patients who rely on it, for disfavored 

coverage. Congress would not—and did not—craft a statute 

permitting such a maneuver. Now Congress will have to fix 

a statute this Court has broken. I respectfully dissent.