[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7368 Introduced in House (IH)]
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118th CONGRESS
2d Session
H. R. 7368
To amend title XVIII of the Social Security Act to provide for the
application of Medicare secondary payer rules to certain workers'
compensation settlement agreements and qualified Medicare set-aside
provisions.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 15, 2024
Mr. Carey (for himself and Mr. Thompson of California) introduced the
following bill; which was referred to the Committee on Ways and Means,
and in addition to the Committee on Energy and Commerce, for a period
to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To amend title XVIII of the Social Security Act to provide for the
application of Medicare secondary payer rules to certain workers'
compensation settlement agreements and qualified Medicare set-aside
provisions.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Coordination Of Medicare Payments
and Workers' Compensation Act'' or the ``COMP Act''.
SEC. 2. APPLICATION OF MEDICARE SECONDARY PAYER RULES TO CERTAIN
WORKERS' COMPENSATION SETTLEMENT AGREEMENTS.
(a) Secondary Payer Provisions for Workers' Compensation Settlement
Agreements.--Section 1862 of the Social Security Act (42 U.S.C. 1395y)
is amended--
(1) in subsection (b)(2)(A)(ii), by inserting ``subject to
subsection (p),'' after ``(ii)''; and
(2) by adding at the end the following new subsection:
``(p) Definitions.--For purposes of this subsection and subsection
(q):
``(1) Compromise agreement.--The term `compromise
agreement' means a workers' compensation settlement agreement
that--
``(A) applies to a workers' compensation claim that
is denied or contested, in whole or in part, by a
workers' compensation payer involved under the workers'
compensation law or plan applicable to the jurisdiction
in which the agreement has been settled; and
``(B) does not provide for a payment of the full
amount of benefits sought or that may be payable under
the workers' compensation claim.
``(2) Workers' compensation claimant.--The term `workers'
compensation claimant' means a worker who--
``(A) is or may be covered under a workers'
compensation law or plan; and
``(B) submits a claim or accepts benefits under
such law or plan for a work-related injury or illness.
``(3) Workers' compensation law or plan.--
``(A) In general.--The term `workers' compensation
law or plan' means a law or program administered by a
State or the United States to provide compensation to
workers for a work-related injury or illness (or for
disability or death caused by such an injury or
illness), including the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 901-944, 948-950), chapter
81 of title 5, United States Code (known as the Federal
Employees Compensation Act), the Black Lung Benefits
Act (30 U.S.C. 931 et seq.), and part C of title 4 of
the Federal Coal Mine and Safety Act (30 U.S.C. 901 et
seq.), but not including the Act of April 22, 1908 (45
U.S.C. 51 et seq.) (popularly referred to as the
Federal Employer's Liability Act).
``(B) Inclusion of similar compensation plan.--Such
term includes a similar compensation plan established
by an employer that is funded by such employer or the
insurance carrier of such employer to provide
compensation to a worker of such employer for a work-
related injury or illness.
``(4) Workers' compensation payer.--The term `workers'
compensation payer' means, with respect to a workers'
compensation law or plan, a workers' compensation insurer,
self-insurer, employer, individual, or any other entity that is
or may be liable for the payment of benefits to a workers'
compensation claimant pursuant to the workers' compensation law
or plan.
``(5) Workers' compensation settlement agreement.--The term
`workers' compensation settlement agreement' means an
agreement, between a claimant and one or more workers'
compensation payers which--
``(A) forecloses the possibility of future payment
of some or all workers' compensation benefits involved;
and
``(B)(i) compensates the claimant for a work-
related injury or illness as provided for by a workers'
compensation law or plan; or
``(ii) eliminates cause for litigation involving
issues in dispute between the claimant and payer.''.
(b) Satisfaction of Secondary Payer Obligations.--Section 1862 of
the Social Security Act (42 U.S.C. 1395y), as amended by subsection
(a), is further amended by adding at the end the following new
subsection:
``(q) Treatment of Medicare Set-Asides Under Workers' Compensation
Settlement Agreements.--
``(1) Satisfaction of secondary payer obligations.--
``(A) Full satisfaction of claim obligations.--
``(i) In general.--If a workers'
compensation settlement agreement, related to a
claim of a workers' compensation claimant,
includes a Medicare set-aside (as defined in
subparagraph (B)(i)), such set-aside shall
satisfy any obligation with respect to payments
reasonably expected to be made under subsection
(b)(2)(A)(ii) with respect to such claim.
``(ii) Rule of construction.--Nothing in
this section shall be construed as requiring
the submission of a Medicare set-aside to the
Secretary.
``(B) Medicare set-aside and medicare set-aside
amount defined.--For purposes of this subsection:
``(i) Medicare set-aside.--The term
`Medicare set-aside' means, with respect to a
workers' compensation settlement agreement, a
provision in the agreement that provides for a
payment of a lump sum, annuity, a combination
of a lump sum and an annuity, or other amount
that is in full satisfaction of the obligation
described in subparagraph (A) for items and
services that the workers' compensation
claimant under the agreement received or is
reasonably expected to receive under the
applicable workers' compensation law.
``(ii) Medicare set-aside amount.--The term
`Medicare set-aside amount' means, with respect
to a Medicare set-aside, the actual dollar
amount provided for in clause (i).
``(2) Medicare set-aside.--
``(A) Satisfaction of medicare set-aside.--For
purposes of this subsection, a Medicare set-aside meets
Medicare secondary payer obligations if the Medicare
set-aside amount reasonably takes into account the full
payment obligation described in paragraph (1)(A), while
meeting the requirements of subparagraphs (B) and (C)
and is determined based on the following:
``(i) The illness or injury giving rise to
the workers' compensation claim involved.
``(ii) The age and life expectancy of the
claimant involved.
``(iii) The reasonableness of and necessity
for future medical expenses for treatment of
the illness or injury involved.
``(iv) The duration of and limitation on
benefits payable under the workers'
compensation law or plan involved.
``(v) The regulations and case law relevant
to the workers' compensation law or plan
involved.
``(B) Items and services included.--A Medicare set-
aside--
``(i) shall include payment for items and
services that are covered and otherwise payable
under this title as of the effective date of
the workers' compensation settlement agreement
and that are covered by the workers'
compensation law or plan; and
``(ii) is not required to provide for
payment for items and services that are not
described in clause (i).
``(C) Payment requirements.--
``(i) Required application of workers'
compensation law and fee schedule.--
``(I) In general.--Except in the
case of an optional direct payment of a
Medicare set-aside made under paragraph
(5)(A), the set-aside amount shall be
based upon the payment amount for items
and services under the workers'
compensation law or plan and applicable
fee schedule (effective as of the date
of the agreement).
``(II) Workers' compensation fee
schedule defined.--For purposes of this
subsection, the term `workers'
compensation fee schedule' means, with
respect to a workers' compensation law
or plan or a similar plan, the schedule
of payment amounts established under
the applicable State, Federal, or other
workers' compensation law to pay
providers for items and services
furnished to workers who incur a work-
related injury or illness as defined
under such law or plan (or in the
absence of such a schedule, the
applicable medical reimbursement rate
under such law or plan).
``(ii) Optional proportional adjustment for
compromise settlement agreements.--In the case
of a compromise settlement agreement, a
claimant or workers' compensation payer who is
party to the agreement may elect to calculate
the Medicare set-aside amount of the agreement
by applying a percentage reduction to the
Medicare set-aside amount for the total
settlement amount that could have been payable
under the applicable workers' compensation law
or similar plan involved had the denied,
disputed, or contested portion of the claim not
been subject to a compromise agreement. The
percentage reduction shall be equal to the
denied, disputed, or contested percentage of
such total settlement. Such election may be
made by a party to the agreement only with the
written consent of the other party or parties
to the agreement.
``(3) Optional process for approval of medicare set-
asides.--
``(A) Optional prior approval by secretary.--A
party to a workers' compensation settlement agreement
that includes a Medicare set-aside may submit to the
Secretary the Medicare set-aside amount for approval.
``(B) Notice of determination of approval or
disapproval.--Not later than 60 days after the date on
which the Secretary receives a submission under
subparagraph (A), the Secretary shall notify in writing
the parties to the workers' compensation settlement
agreement of the determination of approval or
disapproval. If the determination disapproves such
submission the Secretary shall include with such
notification the specific reasons for the disapproval.
``(4) Appeals.--A party to a workers' compensation
settlement agreement that is dissatisfied with a determination
under paragraph (3)(B), upon filing a request for
reconsideration with the Secretary not later than 60 days after
the date of notice of such determination, shall be entitled
to--
``(A) reconsideration of the determination by the
Secretary (with respect to such determination);
``(B) a hearing before an administrative law judge
thereon after such reconsideration; and
``(C) judicial review of the Secretary's final
determination after such hearing.
``(5) Administration of medicare set-aside provisions.--
``(A) Optional direct payment of medicare set-aside
amount.--
``(i) Election for direct payment of
medicare set-aside amount.--Effective 30 days
after the date of enactment of this subsection,
with respect to a claim for which a workers'
compensation settlement agreement is or has
been established, a claimant or workers'
compensation payer who is party to the
agreement may elect, but is not required, to
transfer to the Secretary a direct payment of
the Medicare set-aside amount. The parties
involved may calculate the Medicare set-aside
amount of such set-aside using any of the
following methods:
``(I) In the case of any Medicare
set-aside of a compromise settlement
agreement under paragraph (2)(C)(ii),
the amount calculated in accordance
with such paragraph.
``(II) In the case of any Medicare
set-aside, the amount based upon the
payment amount for items and services
under the workers' compensation law or
plan and fee schedule (effective as of
the date of the agreement) in
accordance with paragraph (2)(C)(i)(I).
``(III) In the case of any Medicare
set-aside, the payment amount
applicable to the items and services
under this title as in effect on the
effective date of the agreement.
Such transfer shall be made only upon written
consent of the other party or parties to the
agreement.
``(ii) Election satisfying liability.--An
election made under clause (i), with respect to
a qualified Medicare set-aside shall satisfy
any payment, in relation to the underlying
claim of the related workers' compensation
settlement agreement, required under subsection
(b)(2) to be made by the claimant or payer to
the Secretary.
``(B) Election of professional or beneficiary self
administration of medicare set-aside payments.--Nothing
in this subsection or subsection (p) prohibits an
individual from electing to utilize professional
administration services or to self-administer payments
of their Medicare set-aside in accordance with existing
law.
``(6) Treatment of workers' compensation law.--For purposes
of this subsection and subsection (p), if a workers'
compensation settlement agreement is accepted, reviewed,
approved, or otherwise finalized in accordance with the
workers' compensation law of the jurisdiction in which such
agreement will be effective, such acceptance, review, approval,
or other finalization shall be deemed final and conclusive as
to any and all matters within the jurisdiction of the workers'
compensation law, including--
``(A) the determination of reasonableness of the
settlement value;
``(B) any allocations of settlement funds;
``(C) the projection of future indemnity or medical
benefits that may be reasonably expected to be paid
under the workers' compensation law; and
``(D) in the case of a compromise agreement, the
total amount that could have been payable for a claim
which is the subject of such agreement in accordance
with paragraph (2)(C)(ii).''.
(c) Conforming Amendments.--Subsection (b) of such section is
further amended--
(1) in paragraph (2)(B)(ii), by striking ``paragraph (9)''
and inserting ``paragraph (9) and subsections (p) and (q)'';
(2) in paragraph (2)(B)(iii)--
(A) in the first sentence, by striking ``In order
to recover payment'' and inserting ``Subject to
subsection (q), in order to recover payment''; and
(B) in the third sentence, by striking ``In
addition'' and inserting ``Subject to subsection (q),
in addition''; and
(3) in paragraph (3)(A), by striking ``There is established
a private cause of action'' and inserting ``Subject to
subsection (q), there is established a private cause of
action''.
(d) Modernizing Terminology for Purposes of Medicare Secondary
Payer Provisions.--Subsection (b)(2)(A) of such section is amended by
striking ``workmen's compensation law or plan'' and inserting
``workers' compensation law or plan'' each place it appears.
(e) Limitation on Liability.--The parties to a workers'
compensation settlement agreement which met the provisions of section
1862(b) of the Social Security Act (42 U.S.C. 1395y(b)) on the
effective date of settlement shall be accepted as meeting the
requirements of such section notwithstanding changes in law,
regulations, or administrative interpretation of such provisions after
the effective date of such settlement.
(f) Effective Date.--The amendments made by this section, unless
otherwise specified, shall apply to a workers' compensation settlement
agreement with an effective date on or after January 1, 2025.
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