HR 2641 IHCommentsClose CommentsPermalink

To amend section 1862 of the Social Security Act with respect to the application of Medicare secondary payer rules to workers’ compensation settlement agreements and Medicare set-asides under such agreements.CommentsClose CommentsPermalink

May 21, 2009CommentsClose CommentsPermalink

Mr. TANNER (for himself, Mr. CHILDERS, Mr. BRADY of Pennsylvania, and Mr. MATHESON) 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 concernedCommentsClose CommentsPermalink

To amend section 1862 of the Social Security Act with respect to the application of Medicare secondary payer rules to workers’ compensation settlement agreements and Medicare set-asides under such agreements.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2009’.CommentsClose CommentsPermalink

SEC. 2. APPLICATION OF MEDICARE SECONDARY PAYER RULES TO CERTAIN WORKERS’ COMPENSATION SETTLEMENT AGREEMENTS AND QUALIFIED MEDICARE SET-ASIDE PROVISIONS.

(a) Exception From Secondary Payer Provisions for Certain Workers’ Compensation Settlement Agreements- Section 1862 of the Social Security Act (42 U.S.C. 1395y) is amended--CommentsClose CommentsPermalink





(1) in subsection (b)(2)(A)(ii), by inserting ‘subject to subsection (n),’ after ‘(ii)’; andCommentsClose CommentsPermalink





(2) by adding at the end the following new subsection:CommentsClose CommentsPermalink





‘(n) Exception From Secondary Payer Provisions for Certain Workers’ Compensation Settlement Agreements-CommentsClose CommentsPermalink





‘(1) IN GENERAL- A workers’ compensation law or plan shall not be treated, for purposes of subsection (b), as a primary plan with respect to an exempt workers’ compensation settlement agreement.CommentsClose CommentsPermalink





‘(2) EXEMPT WORKERS’ COMPENSATION SETTLEMENT AGREEMENT DEFINED- For purposes of this subsection, an ‘exempt workers’ compensation settlement agreement’ means a workers’ compensation agreement that is described in any of the following subparagraphs:CommentsClose CommentsPermalink





‘(A) PRESENT VALUE OF $25,000 OR LESS- A workers’ compensation settlement agreement that has a present value, as determined under paragraph (3), that is, subject to the last sentence of this paragraph, $25,000 or less.CommentsClose CommentsPermalink





‘(B) LIKELY INELIGIBILITY OF WORKERS’ COMPENSATION CLAIMANT FOR MEDICARE BENEFITS- A workers’ compensation settlement agreement the claimant of which is not eligible for benefits under this title as of the effective date of the agreement and, under paragraph (4), is unlikely to become so eligible within 30 months after such effective date.CommentsClose CommentsPermalink





‘(C) NO FUTURE MEDICAL EXPENSES- A workers’ compensation settlement agreement the claimant of which is not eligible for payment of medical expenses incurred after the effective date of such agreement that are available under the workers’ compensation law or plan of the jurisdiction in which such agreement will be effective.CommentsClose CommentsPermalink





‘(D) NO LIMITATION ON FUTURE MEDICAL EXPENSES- A workers’ compensation settlement agreement that does not limit or extinguish the right of the claimant involved to payment of medical expenses incurred after the effective date of such agreement that are available under the workers’ compensation law or plan of the jurisdiction in which such agreement will be effective.CommentsClose CommentsPermalink





The Secretary may adopt rules for an increase in the dollar amount specified under subparagraph (A).CommentsClose CommentsPermalink





‘(3) DETERMINATION OF PRESENT VALUE OF WORKERS’ COMPENSATION SETTLEMENT AGREEMENT-CommentsClose CommentsPermalink





‘(A) IN GENERAL- Subject to subparagraph (B), for purposes of paragraph (2)(A) and subsection (o) and with respect to a work-related injury or illness that is the subject of a workers’ compensation settlement agreement, the present value of the agreement is the sum of any of the following amounts that are used to fund the agreement:CommentsClose CommentsPermalink





‘(i) The amount of any cash payment.CommentsClose CommentsPermalink





‘(ii) The amount of the purchase cost of an annuity (and not the payout or the projected payout paid during the term of such annuity).CommentsClose CommentsPermalink





‘(iii) The amount of the sum of any funds under clause (i) or (ii), previously paid pursuant to a workers’ compensation settlement agreement for the same workers’ compensation claim.CommentsClose CommentsPermalink





‘(B) COSTS EXCLUDED FROM PRESENT VALUE- The present value of a workers’ compensation settlement agreement does not include the following payments made because of the workers’ compensation claim involved:CommentsClose CommentsPermalink





‘(i) Payments to satisfy previous unpaid medical expenses.CommentsClose CommentsPermalink





‘(ii) Payments to satisfy third party claims or liens for amounts previously paid, such as payments under this title, payments under the Medicaid program under title XIX, payments under a program of the Department of Veterans Affairs under title 38, United States Code, payments under an employee welfare benefit plan (as defined in section 3(1) of the Employee Retirement and Income Security Act of 1974), and other similar third party payments.CommentsClose CommentsPermalink





‘(iii) The attorney fees for the claimant involved.CommentsClose CommentsPermalink





‘(iv) Any other procurement costs incurred by a party to the agreement to secure the agreement.CommentsClose CommentsPermalink





‘(4) DETERMINATION OF LIKELY INELIGIBILITY OF CLAIMANT FOR MEDICARE BENEFITS- For purposes of paragraph (2)(B), a workers’ compensation claimant shall be deemed unlikely to become eligible for benefits under this title within 30 months after the effective date of othe agreement unless, as of the effective date of the agreement, such claimant is insured for disability insurance benefits as determined under subsection (c)(1) of section 223 and meets any of the following requirements:CommentsClose CommentsPermalink





‘(A) AWARDED DISABILITY BENEFITS- The claimant has been awarded disability insurance benefits.CommentsClose CommentsPermalink





‘(B) APPLIED FOR DISABILITY- The claimant has applied for disability insurance benefits and the claimant’s application has been pending without decision for 90 days or less after the date of filing the application.CommentsClose CommentsPermalink





‘(C) APPEALING DENIAL OF DISABILITY BENEFITS- The claimant has been denied disability insurance benefits and is appealing (or intending to appeal) a denial of such benefits under subsection (a) of such section.CommentsClose CommentsPermalink





‘(D) MINIMUM AGE- The claimant is at least 62 years and 6 months of age.CommentsClose CommentsPermalink





‘(E) END STAGE RENAL DISEASE- The claimant is medically determined to have end stage renal disease, but does not as of such date qualify for benefits under this title by reason of such disease.CommentsClose CommentsPermalink





‘(5) DEFINITIONS- For purposes of this subsection and subsection (o):CommentsClose CommentsPermalink





‘(A) Workers’ COMPENSATION SETTLEMENT AGREEMENT- The term ‘workers’ compensation settlement agreement’ means an agreement, including a commutation agreement or compromise agreement, or any combination of both, between a workers’ compensation claimant and one or more workers’ compensation payers which is intended--CommentsClose CommentsPermalink





‘(i) to foreclose the possibility of future payment of some or all workers’ compensation benefits involved; andCommentsClose CommentsPermalink





‘(ii)(I) to compensate the claimant for a work-related injury or illness as provided for by a workers’ compensation law or plan; orCommentsClose CommentsPermalink





‘(II) to eliminate cause for litigation involving issues in dispute between the claimant and payer.CommentsClose CommentsPermalink





‘(B) 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.CommentsClose CommentsPermalink





‘(C) Workers’ COMPENSATION CLAIMANT- The term ‘workers’ compensation claimant’ means a worker who--CommentsClose CommentsPermalink





‘(i) is or may be covered under a workers’ compensation law or plan (or similar compensation plan); andCommentsClose CommentsPermalink





‘(ii) submits a claim or accepts benefits under such law or plan (or similar compensation plan) for a work-related injury or illness.CommentsClose CommentsPermalink





‘(D) Workers’ COMPENSATION LAW OR PLAN-CommentsClose CommentsPermalink





‘(i) 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).CommentsClose CommentsPermalink





‘(ii) 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.CommentsClose CommentsPermalink





‘(E) COMPROMISE AGREEMENT- The term ‘compromise agreement’ means a workers’ compensation settlement agreement that--CommentsClose CommentsPermalink





‘(i) 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 (or similar compensation plan) applicable to the jurisdiction in which the agreement has been settled; andCommentsClose CommentsPermalink





‘(ii) does not provide for a payment of the full amount of benefits sought or payable under the workers’ compensation claim.CommentsClose CommentsPermalink





‘(F) COMMUTATION AGREEMENT- The term ‘commutation agreement’ means a workers’ compensation settlement agreement to settle all or a portion of a workers’ compensation claim, in which--CommentsClose CommentsPermalink





‘(i) liability for past and future benefits is not disputed; andCommentsClose CommentsPermalink





‘(ii) the parties to the agreement agree to include payment for future workers’ compensation benefits payable after the date on which the agreement becomes effective.’.CommentsClose CommentsPermalink





(b) Satisfaction of Secondary Payer Requirements Through Use of Qualified Medicare Set-Asides Under Workers’ Compensation Settlement Agreements- 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:CommentsClose CommentsPermalink





‘(o) Treatment of Qualified Medicare Set-Asides Under Workers’ Compensation Settlement Agreements-CommentsClose CommentsPermalink





‘(1) SATISFACTION OF SECONDARY PAYER REQUIREMENTS THROUGH USE OF QUALIFIED MEDICARE SET-ASIDES-CommentsClose CommentsPermalink





‘(A) FULL SATISFACTION OF CLAIM OBLIGATIONS-CommentsClose CommentsPermalink





‘(i) IN GENERAL- If a workers’ compensation settlement agreement, related to a claim of a workers’ compensation claimant, includes a qualified Medicare set-aside, such set-aside shall satisfy any obligation with respect to the present or future payment reimbursement under subsection (b)(2), with respect to such claim. The Secretary shall have no further recourse, directly or indirectly, under this title.CommentsClose CommentsPermalink





‘(ii) RULE OF CONSTRUCTION- Nothing in this section shall be construed as requiring the submission of a Medicare set-aside to the Secretary.CommentsClose CommentsPermalink





‘(B) MEDICARE SET-ASIDE AND MEDICARE SET-ASIDE AMOUNT DEFINED- For purposes of this subsection:CommentsClose CommentsPermalink





‘(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 likely to receive under the applicable workers’ compensation law and for which payment would be made under this title, but for subsection (b)(2)(A).CommentsClose CommentsPermalink





‘(ii) MEDICARE SET-ASIDE AMOUNT- The term ‘Medicare set-aside amount’ means, with respect to a Medicare set-aside, the amount described in clause (i).CommentsClose CommentsPermalink





‘(2) QUALIFIED MEDICARE SET-ASIDE-CommentsClose CommentsPermalink





‘(A) REQUIREMENTS OF QUALIFIED MEDICARE SET-ASIDE- For purposes of this subsection, the term ‘qualified Medicare set-aside’ is a Medicare set-aside in which the Medicare set-aside amount reasonably takes into account the full payment obligation described in paragraph (1)(A), consistent with subparagraphs (B) and (C) and giving due consideration to the following:CommentsClose CommentsPermalink





‘(i) The illness or injury giving rise to the workers’ compensation claim involved.CommentsClose CommentsPermalink





‘(ii) The age and life expectancy of the claimant involved.CommentsClose CommentsPermalink





‘(iii) The reasonableness of and necessity for future medical expenses for treatment of the illness or injury involved.CommentsClose CommentsPermalink





‘(iv) The duration of and limitation on benefits payable under the workers’ compensation law or plan involved.CommentsClose CommentsPermalink





‘(B) ITEMS AND SERVICES INCLUDED- The Medicare set-aside--CommentsClose CommentsPermalink





‘(i) shall include payment for items and services that are authorized for payment under this title as of the effective date of the workers’ compensation settlement agreement involved and that are covered by the workers’ compensation law or plan involved; andCommentsClose CommentsPermalink





‘(ii) is not required to provide for payment for items and services that are not described in clause (i).CommentsClose CommentsPermalink





‘(C) PAYMENT REQUIREMENTS-CommentsClose CommentsPermalink





‘(i) REQUIRED USE OF WORKERS’ COMPENSATION FEE SCHEDULE-CommentsClose CommentsPermalink





‘(I) IN GENERAL- Except in the cases of a Medicare set-aside deemed a qualified Medicare set-aside under paragraph (4)(A) or an optional direct payment of a Medicare set-aside made under paragraph (6)(A), the set-aside amount shall be based upon the payment amount for items and services under the workers’ compensation fee schedule (effective as of the date of the agreement) applicable to the workers’ compensation law or plan involved.CommentsClose CommentsPermalink





‘(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 of a State or a similar plan applicable in a State, the schedule of payment amounts the State has established 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).CommentsClose CommentsPermalink





‘(ii) REQUIRED PAYMENT ADJUSTMENT FOR CERTAIN FEES- The Medicare set-aside amount otherwise computed shall be reduced by--CommentsClose CommentsPermalink





‘(I) the amount of the direct costs and expenses incurred in establishing, administering, or securing approval for the Medicare set-aside; andCommentsClose CommentsPermalink





‘(II) the proportional share of other costs and expenses (including fees for attorneys, third-party vendors, and administrators) incurred by the claimant or payer in entering into the workers’ compensation settlement agreement involved.CommentsClose CommentsPermalink





‘(iii) OPTIONAL PROPORTIONAL ADJUSTMENT FOR COMPROMISE SETTLEMENT AGREEMENTS-CommentsClose CommentsPermalink





‘(I) IN GENERAL- In the case of a compromise settlement agreement, a workers’ compensation claimant or workers’ compensation payer who is party to the agreement may elect (but is not required) 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 or contested portion of the claim not been subject to a compromise agreement. The percentage reduction shall be equal to the denied 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 to the agreement.CommentsClose CommentsPermalink





‘(II) APPLICATION- If the workers’ compensation claimant or workers’ compensation payer elects to calculate the Medicare set-aside amount under this clause, the Medicare set-aside shall be deemed a qualified Medicare set-aside.CommentsClose CommentsPermalink





‘(3) PROCESS FOR APPROVAL OF QUALIFIED MEDICARE SET-ASIDES-CommentsClose CommentsPermalink





‘(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 set-aside, including appropriate supporting documentation specified by the Secretary, for approval of the set-aside as a qualified Medicare set-aside. The set-aside shall be submitted in accordance with a procedure specified by the Secretary.CommentsClose CommentsPermalink





‘(B) AUTOMATIC APPROVAL UNLESS DISAPPROVED- A Medicare set-aside submitted under subparagraph (A) shall be deemed a qualified Medicare set-aside unless the Secretary determines and provides notice under subparagraph (C) that the Medicare set-aside does not satisfy the requirements of paragraph (2)(A) because the amount of the proposed Medicare set-aside is based on a substantial material error and is not supported by the documentation submitted under subparagraph (A).CommentsClose CommentsPermalink





‘(C) NOTICE OF DETERMINATION OF 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 under subparagraph (B). If the determination disapproves such submission the Secretary shall include with such notification the specific reasons for the disapproval. A determination that disapproves a submission is not valid if the determination does not include a specific explanation of each deficiency of the submission.CommentsClose CommentsPermalink





‘(4) SAFE HARBOR FOR CERTAIN MEDICARE SET-ASIDES-CommentsClose CommentsPermalink





‘(A) IN GENERAL- A Medicare set-aside of a workers’ compensation settlement agreement shall be deemed a qualified Medicare set-aside if the Medicare set-aside amount is the safe harbor amount for the agreement and if the present value of the workers’ compensation settlement agreement (as determined under subsection (n)(3)) does not exceed, subject to subparagraph (D), $250,000.CommentsClose CommentsPermalink





‘(B) SAFE HARBOR AMOUNT DEFINED- For purposes of this paragraph, the term ‘safe harbor amount’ means, for a workers’ compensation settlement agreement, 10 percent of the present value of the agreement (as determined under subsection (n)(3)).CommentsClose CommentsPermalink





‘(C) RULE OF CONSTRUCTION- In the case of a workers’ compensation settlement agreement with a Medicare set-aside that is deemed a qualified Medicare set-aside under subparagraph (A), the fact that the workers’ compensation claimant or workers’ compensation payer involved may elect direct payment under paragraph (6)(A) or an adjustment under paragraph (2)(C)(iii) shall not be construed as prohibiting such claimant or payer from basing the set-aside amount on the safe harbor amount for such agreement.CommentsClose CommentsPermalink





‘(D) RULES- The Secretary may adopt rules for an increase in the dollar amount specified under subparagraph (A). Such rules may provide that the increase in such dollar amount be the same percentage increase as the percentage increase in the dollar amount effected under the last sentence of subsection (n)(2).CommentsClose CommentsPermalink





‘(5) APPEALS-CommentsClose CommentsPermalink





‘(A) IN GENERAL- 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--CommentsClose CommentsPermalink





‘(i) reconsideration of the determination by the Secretary (with respect to such determination);CommentsClose CommentsPermalink





‘(ii) a hearing before an administrative judge thereon; andCommentsClose CommentsPermalink





‘(iii) judicial review of the Secretary’s final determination after such hearing.CommentsClose CommentsPermalink





‘(B) DEADLINES FOR DECISIONS-CommentsClose CommentsPermalink





‘(i) RECONSIDERATIONS-CommentsClose CommentsPermalink





‘(I) IN GENERAL- The Secretary shall conduct and conclude a reconsideration of a determination under paragraph (3)(B) and mail the notice of the decision of such reconsideration by not later than the last day of the 30-day period beginning on the date that a request for such reconsideration has been timely filed.CommentsClose CommentsPermalink





‘(II) APPEALS OF RECONSIDERATIONS- If a party to the workers’ compensation settlement involved is dissatisfied with the Secretary’s decision under subclause (I), that party may file an appeal within the 30-day period after the date of receipt of the notice of the decision under such subclause and request a hearing before an administrative law judge.CommentsClose CommentsPermalink





‘(III) FAILURE BY SECRETARY TO PROVIDE NOTICE- In the case of a failure by the Secretary to mail the notice of the decision under subclause (I) by the last day of the period described in such subclause, the party requesting the reconsideration may request a hearing before an administrative law judge, notwithstanding any requirements for a reconsideration of a determination for purposes of the party’s right to such hearing.CommentsClose CommentsPermalink





‘(ii) HEARINGS-CommentsClose CommentsPermalink





‘(I) IN GENERAL- An administrative law judge shall conduct and conclude a hearing on a decision of the Secretary under clause (i) and render a decision on such hearing by not later than the last day of the 90-day period beginning on the date that a request for such hearing has been timely filed.CommentsClose CommentsPermalink





‘(II) JUDICIAL REVIEW- A decision under subclause (I) by an administrative law judge constitutes a final agency action and is subject to judicial review.CommentsClose CommentsPermalink





‘(III) FAILURE BY ADMINISTRATIVE LAW JUDGE TO RENDER TIMELY DECISION- In the case of a failure by an administrative law judge to render a decision under subclause (I) by the last day of the period described in such subclause, the party requesting the hearing may seek judicial review of the decision under clause (i), notwithstanding any requirements for a hearing for purposes of the party’s right to such judicial review.CommentsClose CommentsPermalink





‘(6) ADMINISTRATION OF MEDICARE SET-ASIDE PROVISIONS; PROTECTION FROM CERTAIN LIABILITY-CommentsClose CommentsPermalink





‘(A) OPTIONAL DIRECT PAYMENT OF MEDICARE SET-ASIDE AMOUNT-CommentsClose CommentsPermalink





‘(i) ELECTION FOR DIRECT PAYMENT OF MEDICARE SET-ASIDE- With respect to a claim for which a workers’ compensation settlement agreement is established, a workers’ compensation 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 qualified Medicare set-aside or an annuity purchased to directly fund the set-aside amount. With respect to a qualified Medicare set-aside paid directly to the Secretary, the parties involved may calculate the Medicare set-aside amount of such set-aside using any of the following methods:CommentsClose CommentsPermalink





‘(I) In the case of any Medicare set-aside deemed a qualified Medicare set-aside under paragraph (4)(A), the amount calculated in accordance with such paragraph.CommentsClose CommentsPermalink





‘(II) In the case of any Medicare set-aside of a compromise settlement agreement under paragraph (2)(C)(iii), the amount calculated in accordance with such paragraph.CommentsClose CommentsPermalink





‘(III) In the case of any Medicare set-aside, the amount based upon the payment amount for items and services under the workers’ compensation fee schedule (effective as of the date of the agreement) applicable to the workers’ compensation law or plan involved, in accordance with paragraph (2)(C)(i)(I).CommentsClose CommentsPermalink





‘(IV) 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.CommentsClose CommentsPermalink





Such transfer shall be in accordance with a procedure established by the Secretary and shall be made only upon written consent of the other party to the agreement.CommentsClose CommentsPermalink





‘(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. The Secretary shall have no further recourse, directly or indirectly, under this title.CommentsClose CommentsPermalink





‘(B) REQUIREMENT FOR TIMELY NOTICE OF MEDICARE REPAYMENTS OWED BY WORKERS’ COMPENSATION CLAIMANT OR PAYER TO SECRETARY-CommentsClose CommentsPermalink





‘(i) IN GENERAL- Not later than 90 days after the date on which the Secretary receives a request from a workers’ compensation claimant or workers’ compensation payer for documentation of any conditional payment made under subsection (b)(2)(B)(i) on behalf of the claimant, the Secretary shall provide to the claimant or payer such documentation. Such documentation shall be sufficient for the claimant or payer to make a reasonable determination whether such a payment was for an item or service furnished in connection with the claimant’s work related injury or illness involved. The claimant or payer may rely on the documentation provided under this clause in making such determination. Payment of the amount of the conditional payment, after deducting from such amount any procurement costs involved and any costs for unrelated and inappropriate items or services, shall discharge further liability with respect to the conditional payment.CommentsClose CommentsPermalink





‘(ii) LIABILITY FOR REIMBURSEMENTS RELATED TO REQUESTED INFORMATION- If the Secretary fails to provide information in accordance with clause (i), then neither the claimant nor the payer described in such clause shall be liable for any reimbursement under subsection (b)(2)(B) with respect to the conditional payment for which information was requested under such clause.CommentsClose CommentsPermalink





‘(C) PROTECTION FROM CERTAIN LIABILITY-CommentsClose CommentsPermalink





‘(i) LIABILITY FOR MEDICARE SET-ASIDE PAYMENT GREATER THAN PAYMENT UNDER WORKERS’ COMPENSATION LAW- No workers’ compensation claimant, workers’ compensation payer, employer, administrator of the Medicare set-aside, legal representative of the claimant, payer, employer, or administrator, or any other party related to the claimant, payer, employer, or administrator shall be liable for any payment amount established under a Medicare set-aside for an item or service provided to the claimant that is greater than the payment amount for the item or service established under the workers’ compensation fee schedule (or in the absence of such schedule, the medical reimbursement rate) under the compensation law or plan of the jurisdiction where the agreement will be effective.CommentsClose CommentsPermalink





‘(ii) LIABILITY FOR PROVIDER CHARGES GREATER THAN PAYMENT UNDER WORKERS’ COMPENSATION AGREEMENT- With respect to a workers’ compensation settlement agreement, a provider may not bill (or collect any amount from) the workers’ compensation claimant, workers’ compensation payer, employer, administrator of the Medicare set-aside, legal representative of the claimant, payer, employer, or administrator, or any other party related to the claimant, payer, employer, or administrator an amount for items and services provided to the claimant that is greater than the payment rate for such items and services established under the Medicare set-aside of the agreement. No person is liable for payment of any amounts billed for an item or service in violation of the previous sentence. If a provider willfully bills (or collects an amount) for such an item or service in violation of such sentence, the Secretary may apply sanctions against the provider in accordance with section 1842(j)(2) in the same manner as such section applies with respect to a physician. Paragraph (4) of section 1842(j) shall apply under this clause in the same manner as such paragraph applies under such section.CommentsClose CommentsPermalink





‘(D) AUTHORITY TO MODIFY OR TERMINATE QUALIFIED MEDICARE SET-ASIDES-CommentsClose CommentsPermalink





‘(i) IN CASE OF DEATH OF CLAIMANT- At any time after the death of a workers’ compensation claimant, an individual entitled (after such death) to disbursement of the funds remaining in the Medicare set-aside involved in the workers’ compensation claim of the claimant may submit to the Secretary a request to terminate the Medicare set-aside upon a showing of the death and payment of all claims that are subject to this subsection.CommentsClose CommentsPermalink





‘(ii) IN THE CASE OF MEDICAL IMPROVEMENT OR CHANGE OF CIRCUMSTANCES- At any time after the date that is five years after the date of qualification of a Medicare set-aside involved, the workers’ compensation claimant involved may submit to the Secretary a request to modify or terminate the Medicare set-aside upon a showing of a substantial medical improvement of the claimant, with respect to the injury or illness involved, or of changed circumstances of the claimant that justify a reduction of the funds of the Medicare set-aside (as in existence on the date of such request) by at least 25 percent.CommentsClose CommentsPermalink





‘(iii) NOTICE REQUIRED- The Secretary may not approve a request submitted under clause (i) or (ii) to modify or terminate a Medicare set-aside unless the workers’ compensation claimant involved or the individual entitled to disbursement (as described in clause (i)) includes with such request the following:CommentsClose CommentsPermalink





‘(I) Assurances satisfactory to the Secretary that at the time of the submission of such request the claimant or individual entitled to disbursement sent notice of such request to any party that has a reversionary interest to such request and that is specifically designated in the Medicare set-aside for receipt of such notice.CommentsClose CommentsPermalink





‘(II) Assurances satisfactory to the Secretary that such notice was sent by certified mail to the address of record of such designated party.CommentsClose CommentsPermalink





‘(III) A copy of such notice.CommentsClose CommentsPermalink





‘(iv) PROCESS FOR APPROVAL OF APPLICATIONS TO MODIFY OR TERMINATE QUALIFIED MEDICARE SET-ASIDES IN THE CASE OF MEDICAL IMPROVEMENT OR CHANGE OF CIRCUMSTANCES- Subparagraphs (B) and (C) of paragraph (3) shall apply to requests submitted to the Secretary under clause (ii) to modify or terminate a Medicare set-aside in the same manner as such subparagraphs apply to Medicare set-aside agreements submitted to the Secretary under subparagraph (A) of such paragraph to be deemed qualified Medicare set-asides. In applying such subparagraphs (B) and (C), any reference to such subparagraph (A) shall be deemed a reference to clause (ii), and any reference in such subparagraph (B) to ‘the requirements of paragraph (2)(A)’ shall be deemed to include a reference to the showing required under clause (ii).CommentsClose CommentsPermalink





‘(v) EFFECTIVE DATES FOR MODIFICATIONS AND TERMINATIONS-CommentsClose CommentsPermalink





‘(I) FOR DEATH OF CLAIMANT- In the case of a termination request under clause (i) that is approved, the termination shall take effect on the latter of the date on which the showing described in such clause has been provided to the Secretary, or the date that is 60 days after the date on which the individual entitled to disbursement of the funds remaining in the Medicare set-aside involved sends the notice under clause (iii) to the party designated for receipt of such notice.CommentsClose CommentsPermalink





‘(II) FOR MEDICAL IMPROVEMENT OR CHANGE OF CIRCUMSTANCES- In the case of a modification request or termination request under clause (ii) that is approved according to clause (iv), the modification or termination, respectively, shall take effect on the latter of the date of the approval or the date that is 60 days after the date on which the workers’ compensation claimant involved sends the notice under clause (iii) to the party designated for receipt of such notice.CommentsClose CommentsPermalink





‘(vi) TREATMENT OF REMAINING MEDICARE SET-ASIDE FUNDS- Upon termination or modification under this paragraph, any funds released from the set-aside shall revert pursuant to the terms of the settlement agreement, or if there is no reversionary clause, then such remaining funds shall be disbursed pursuant to the applicable State law.CommentsClose CommentsPermalink





‘(7) TREATMENT OF STATE WORKERS’ COMPENSATION LAW- For purposes of this subsection and subsection (n), 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 conclusive as to any and all matters within the jurisdiction of the workers’ compensation law, including the determination of the total amount that could have been payable for a claim which is the subject of a compromise agreement in accordance with paragraph (2)(C)(iii). A determination made by applicable authority for a jurisdiction that a workers’ compensation settlement agreement is in accordance with the workers’ compensation law of the jurisdiction shall not be subject to review by the Secretary.’.CommentsClose CommentsPermalink





(c) Conforming Amendments- Section 1862(b) of the Social Security Act (42 U.S.C. 1395y(b)), as amended by subsection (a), is further amended--CommentsClose CommentsPermalink





(1) in paragraph (2)(B)(ii), by striking ‘A primary plan’ and inserting ‘Subject to subsections (n) and (o), a primary plan’;CommentsClose CommentsPermalink





(2) in paragraph (2)(B)(iii)--CommentsClose CommentsPermalink





(A) in the first sentence, by striking ‘In order to recover payment’ and inserting ‘Subject to subsection (o), in order to recover payment’; andCommentsClose CommentsPermalink





(B) in the third sentence, by striking ‘In addition’ and inserting ‘Subject to subsection (o), in addition’; andCommentsClose CommentsPermalink





(3) in paragraph (3)(A), by striking ‘There is established a private cause of action’ and inserting ‘Subject to subsection (o), there is established a private cause of action’.CommentsClose CommentsPermalink





(d) Modernizing Terminology for Purposes of Medicare Secondary Payer Provisions- Paragraph (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.CommentsClose CommentsPermalink

SEC. 3. LIMITATION ON ADDITIONAL LIABILITY; SEVERABILITY.

(a) Limitation on Additional Liability Under Current Agreements Except for Fraud- Nothing in the Medicare secondary payer provisions in section 1862(b) of the Social Security Act (42 U.S.C. 1395y(b)) shall authorize the Secretary of Health and Human Services to impose liability that is additional to the liability in effect on the date of the enactment of this Act with respect to a workers’ compensation settlement agreement the effective date of which is before such date of enactment, except in the case of fraud.CommentsClose CommentsPermalink





(b) Severability- If any provision of this Act or the amendments made by this Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act, the amendments made by this Act, or the application thereof to other persons not similarly situated or to other circumstances shall not be affected by such invalidation.CommentsClose CommentsPermalink

SEC. 4. EFFECTIVE DATE.

The amendments made by section 2 shall apply to a workers’ compensation settlement agreement with an effective date on or after the date of the enactment of this Act.CommentsClose CommentsPermalink