How a Trump Presidency Could Reshape Medicare Secondary Payer Enforcement
Written by: Heather Sanderson
The 2024 presidential election has ended, and Donald Trump has been elected as the 47th President of the United States. We also have an overwhelmingly Republican controlled Congress. Much speculation has been made as to the estimated impact of the new administration’s policies on Medicare and associated policies therewith, such as the Medicare Secondary Payer Act (MSP) which aims to protect the Medicare Trust Fund by ensuring that Medicare is not a primary payer where a primary payer is available.
It is no secret that Trump is in major favor of the privatization of Medicare. For those who are unfamiliar with the four major Medicare plan types and which plan types are administered by the federal government versus private companies, let’s quickly review.
There’s traditional Medicare Part A and B, which is administered by the Centers for Medicare & Medicaid Services (CMS). Then there are also private Medicare plans, known as Medicare Part C (Medicare Advantage Plans) as well as Medicare Part D (Medicare Prescription Drug Plans). Medicare Part C and D plans are run through private insurance companies and there are thousands of these plans available; however, the most well-known plans are United Healthcare, Humana, Optum, and the like.
The trend toward the privatization of Medicare steadily increases year-over-year. According to the Kaiser Family Foundation (KFF), in 2024, more than half (54%) of eligible Medicare beneficiaries – 32.8 million out of 61.2 million Medicare beneficiaries with both Medicare Parts A and B – are enrolled in Medicare Advantage plans. Medicare Advantage enrollment as a share of the eligible Medicare population has jumped from 19% in 2007 to 54% in 2024.
Of note, “Project 2025” (invoked as fact by President Joe Biden and Vice President Kamala Harris but denounced by President-elect Donald Trump and Vice President-elect JD Vance), a popular talking point during the 2024 presidential race and potential federal policy agenda published by the conversative-leaning Heritage Foundation, could make insurer-run plans as the default Medicare enrollment option if ultimately pursued by the Trump administration.
Now the question remains, as Medicare Advantage enrollment continues to rise both organically as well as through the new administration’s policies, what does this mean for MSP in 2025 and beyond?
Arguably, the most significant impact is to Medicare conditional payment resolution. If you work with or settle workers’ compensation, general liability, or no-fault claims with Medicare beneficiaries, and you are not becoming aware/taking note of the PAID Act data, you are missing a significant component of ensuring MSP compliance. The PAID Act provides Medicare enrollment data to primary payer insurers across A, B, C, and D Medicare plans spanning back 3 years from the date of query.
Medicare Advantage and Prescription Drug plans conduct their own conditional payment resolution and seek recoveries themselves or through a subrogation/recovery agent. Conditional payment notices from CMS’ contractors (namely, the Benefits Coordination & Recovery Center [BCRC] and the Commercial Repayment Center [CRC]) do not include Medicare Part C and D conditional payment liens. You or your MSP compliance firm must reach out to the Medicare Part C and D company to resolve and dispute these conditional payments. Failure to do so can result in double damages to the primary payer insurer, as numerous courts nationwide have held that Medicare Advantage Plans hold the same rights of recovery for double damages if not reimbursed. Thus, the increased enrollment into Medicare Advantage Plans that will continue to occur with this administration should not be ignored. Claims examiners must know what types of Medicare plans injured parties have been enrolled in for the life of the claim. This is even more important with increasing Medicare Advantage Plan enrollment.
As for Medicare Set-Asides (MSAs) and the impact of increased Medicare Advantage Plan enrollment, a future complication here is around the new WCMSA Reporting requirement taking place on April 4, 2025. CMS will continue to share Section 111 reporting data as well as specifically sharing MSA data with the Medicare Advantage Plans, and CMS will be using this data to coordinate benefits. Ensuring that there is an MSA in place where an injured Medicare beneficiary requires future care will be crucial so that there are no coordination of benefits attempts/denials from Medicare Advantage Plans.
With the newly elected administration and increased CMS initiatives over the last several years around enforcement of the MSP, now is a critical time to ensure you have the right MSP compliance partner at your side. Here at Sanderson Firm, when our clients want something faster, better, creative and consultative, they come to us. Our services span across various Medicare Set-Aside offerings, Section 111 Reporting and audits, as well as traditional and Medicare Advantage/Prescription Drug conditional payment resolution. Contact us today to learn more.
