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July 29, 2022



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Washington, D.C. —  Today, Congresswoman Yvette D. Clarke (D-NY) joined with Reps. Jodey Arrington (R-TX), Earl “Buddy” Carter (R-GA) and Danny K. Davis (D-IL) in introducing bipartisan, bicameral legislation to ensure that individuals with end stage renal disease (ESRD) have access to meaningful private health care coverage options, and protect the Medicare Trust Fund, as Congress intended when it amended the Medicare Secondary Payer Act (MSPA) in 1981. Over the past four decades, the provisions of the MSPA have been followed almost uniformly. Unfortunately, last month’s Supreme Court decision that narrowly interpreted the language in the MSPA created a potential loophole for plans to circumvent the purpose and intent of the law. 

Without legislation to close the loophole, plans could discriminate against patients with ESRD by targeting the services they need for life-sustaining dialysis care. By limiting the benefits needed nearly exclusively by individuals with ESRD, those individuals may be forced to give up their private employer group coverage and elect Medicare sooner than they otherwise may prefer. For family members of patients with ESRD, this could mean the loss of coverage altogether since Medicare does not extend to them. This outcome also has significant, negative implications for the health of the Medicare Trust Fund, which the MSPA sought to preserve by establishing a period during which private plans would be the primary payer for individuals with ESRD.

“In adopting the MSPA provisions forty years ago, Congress recognized that individuals with ESRD are among the most vulnerable of all patients. Today, the disease continues to have a disproportionate impact on communities of color,” said Rep. Clarke. “Their complex health care needs create incentives for plans to discourage enrollment, making patients with ESRD especially susceptible to discriminatory actions, like dialysis benefits that are more limited compared to those for other illnesses. Our bipartisan legislation simply affirms the MSPA’s longstanding intent to prevent such discrimination by closing the loophole resulting from the Supreme Court ruling.

“I am pleased to join Reps. Clarke, Carter, and Davis in introducing this important legislation, said Rep. Arrington. “This is a straightforward bipartisan, bicameral bill that corrects harm to patients with ESRD and the Medicare Trust Fund resulting from the Supreme Court’s decision. I encourage my colleagues to join us in ensuring that patients with ESRD have continued access to meaningful private health plan options and can elect the coverage that best meets their families’ needs, as Congress intended when it adopted the MSPA provisions in 1981.”

“Beyond its impact on patients with ESRD, the Supreme Court’s decision could chip away at important legal precedent that underpins other anti-discrimination rules. This bipartisan, bicameral legislation sends a clear message that Congress stands by the law it passed over 40 years ago and will not tolerate carefully crafted attempts to evade hard fought protections for ESRD patients or other vulnerable groups,” said Rep. Davis.

“This bill protects not only patients, it also protects the Medicare program, which is a fundamental goal of the MSPA. Plans should not shirk their responsibilities in caring for individuals who may also have or be eligible for Medicare. These individuals have every right to elect the private coverage that best suits their needs and the needs of the families. If there was ever a bill that deserves immediate action, it is this one. I urge our colleagues to join us in getting this legislation adopted and enacted as quickly as possible, “ said Rep. Carter.


Yvette D. Clarke has been in Congress since 2007. She represents New York’s Ninth Congressional District, which includes Central and South Brooklyn. Clarke is a Senior Member of both the House Energy and Commerce Committee and House Committee on Homeland Security, where she serves as Chair of the Cybersecurity, Infrastructure Protection, and Innovation Subcommittee.