How the Presidential Election Could Affect Medicare Secondary Payer


With the Presidential Elections on November 8th nearing around the corner, the industry has been wondering how the election of either Hillary Clinton or Donald Trump as President of the United States would affect Medicare Secondary Payer (MSP) Act compliance. *Note that this blogwire article is not intended to be an endorsement for either political candidate, political party, platform, or affiliation.

If Donald Trump is elected: Donald Trump’s website does not directly address his position on Medicare. However, according to a article, “The GOP platform advocates a “premium support model” for Medicare that would “guarantee to every enrollee an income-adjusted contribution toward a plan of their choice, with catastrophic protection.” In other words, privatization. Republicans would “save Medicare by modernizing it,” the platform says.”

                Potential Impact: Currently 31% of Medicare beneficiaries are enrolled in a private Medicare Advantage Plan (MAP). That percentage is expected to increase, and if Trump is elected, we may see that number rise more rapidly. The effect on MSP would be that we would see a rise in conditional payments being made by MAPs, versus traditional Medicare.

Over the past several years, we have seen increased case law finding that Medicare Advantage plans have the same rights as Medicare to recovery, thereby allowing the Medicare Advantage Plan to assert double damages. As Medicare Advantage Plans have become even more aggressive with lawsuits for double damages than traditional Medicare has, we could expect that to continue. Primary payers would be wise to enact a proactive solution to ensure that Medicare Advantage Plan conditional payments are addressed, particularly in those Circuits where the Courts have found in favor of MAPs having these rights.

                To learn more about MAPs and recommendations to address reimbursement of these payments, please join Franco Signor for a webinar wherein we will feature a special guest to discuss these Best Practices on November 18th, at 1:30 PM. Registration for the webinar can be found here.

If Hillary Clinton is elected: According to Hillary Clinton’s website, Hillary Clinton proposes to allow people 55 and older to buy into Medicare. She is calling this “Medicare for More.” Additionally, Clinton rejects the idea of gradually converting Medicare into a privatized system.

                Potential Impact: Currently, the age to enroll into Medicare is 65. If people aged 55 and up could now buy into Medicare, there ideally will be more MSP claims to address as the Medicare population would expand to a younger age group.

Summary: While neither candidate can single-handedly make these changes and would need the support of Congress, with either candidate we are likely to see an increase in claims that would require MSP compliance. Whether we continue to see Medicare beneficiaries move to private Medicare Advantage Plans which continue to press for their rights to double damages reimbursement, or the Medicare pool expands to individuals 55 and up, MSP compliance will be more important than ever.

Additionally, CMS has indicated that an award for the Workers’ Compensation Review Contractor (WCRC) will take place in the second quarter of next year. With the new WCRC, we may also have thresholds for Liability Medicare Set-Aside (LMSA) review. 2017 will be an interesting year, and having a strategic partner that is ready to provide a holistic claims strategy to your MSP compliance program will be vital.

About the Author

Heather Schwartz, Esq., MSCC, CHPE, CLMP, CMSP

Heather Schwartz Sanderson, Esq., MSCC, CHPE, CLMP, CMSP

Heather is Chief Legal Officer for Franco Signor LLC, the nation's compliance authority for Medicare Secondary Payer (MSP) matters. She has lectured on MSP compliance to the workers' compensation and liability insurance communities at conferences, associations, and individual offices nationwide. She is a regularly published author on court decisions and legislative reforms involving Medicare Set-Asides, conditional payments, and Mandatory Insurer Reporting issues. Understanding that compliance with the Medicare Secondary Payer Act can be at times complex and frustrating for those that handle claims with Medicare beneficiaries, Heather's goal is to speak and write with the primary goal being simple and understandable solutions to compliance. 

Heather can be reached at
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