Last week, news broke that several federal agencies have determined that the Medicare Hospital Insurance Trust Fund will run dry by 2031.

At risk: inpatient hospital services, hospice care, and skilled nursing facility and home health services following hospital stays. Unless changes are made before that 2031 date, health care providers will be facing an 11% cut. The impacts of those cuts would be deeply felt in Oregon and across the country.

As someone who spent their career in public health and running hospitals, I know that there has been a dangling sword over Medicare for decades. You would hope insolvency deadlines would be a call to action for both parties but, to date, the political will for long term solutions to Medicare has been wanting.

While I understand that big swings on critical programs like Medicare are complicated and contentious, especially in a divided Congress, allowing Medicare to fail is not an option.

There are achievable common-sense solutions Congress can prioritize that will help shore up Medicare. Bipartisan ideas like negotiating prescription prices and rooting out waste, fraud, and abuse of the current system.

In fact, there is already a law in place to tackle the latter and if Washington is serious about shoring up Medicare, they could start by bolstering the Medicare Secondary Payer Act (MSP).

The MSP was passed in 1980 to ensure that Medicare is the backup insurance when a primary payer is available to cover the costs of health care. Meaning that if a person has an auto insurance policy or employer group health insurance, that other source of insurance is considered the primary plan and must pay first. Auto and liability insurers are supposed to be the ones to notify Medicare when they are the primary payer on a claim. If they don’t, the law allows a private right of action by Medicare or Medicare Advantage firms and, as an incentive for compliance, Medicare can recover double damages against any entity considered responsible for payment under the MSP Act.

In 2021, the MSP saved the Medicare program about $9.7 billion even though the program is not recovering as much as it should. Why? Insurance companies have regularly shirked their liability, forcing Medicare to pay out billions of dollars where insurers should have been paying first.

One company who has been monitoring and assisting in recovering Medicare funds exposed deliberate gaming of the system where the country’s largest auto insurers have openly admitted that in some instances, they do not repay Medicare 98% of the time. This is costing Medicare billions of dollars each year and, if addressed, could drive much needed revenue into Medicare. However, a recent court case in Florida could set a dangerous precedent that could allow state laws to interfere with MSP’s fund recovery process.

In Florida, there is a state law that requires pre-suit notice for all property claims giving defendants 30 days to cure the deficiency. This February, the U.S. 11th Circuit Court of Appeals ruled that the MSP Act did not preempt this state law.

This means that in Florida, insurers can wait until Medicare has approached them through a demand letter, then reimburse Medicare during Florida’s 30-day cure period without ever fearing double damages. That removes the incentive for private insurers to be proactive and puts the burden back on Medicare to know who the primary payer should be. Many times, Medicare won’t know and will have to absorb the cost. If other state laws are allowed to interfere in this manner, Medicare could lose billions.

As of May 2022, enrollment for Medicare in Oregon stood at 909,151 people, amounting to more than 21% of the state’s population. For them, for the future of Medicare for all Americans, we need our federal leaders like Senator (Ron) Wyden, who has introduced bills to improve the MSP Act in the past, and his colleagues to weigh in and clarify that the MSP cannot be preempted by state laws so the government can recover the billions of dollars it is owed.