,i #aacth ,,congress #ast ,session ,h4 ,r4 #aihb ,,in ,,the ,,house ,,of ,,representatives ,may #ae1 #bjac ,mr4 ,reichert 7for himself and ,mr4 ,thompson of ,california7 introduced the following bill2 which was referred to the ,committee on ,ways and ,means1 and in addition to the ,committee on ,energy and ,commerce1 for a period to be subsequently determined by the ,speaker1 in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned ,a ,,bill ,to amend section #ahfb 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 agreements4 #a4 ,short title ,this ,act may be cited as the ,medicare ,secondary ,payer and ,workers' ,compensation ,settlement ,agreements ,act of #bjac4 #b4 ,application of ,medicare secondary payer rules to certain workers' compensation settlement agreements and qualified ,medicare set-aside provisions 7a7 ,threshold for secondary payer provisions for certain workers' compensation settlement agreements ,section #ahfb of the ,social ,security ,act 7#db ,u4,s4,c4 #aciey7 is amended-- 7#a7 in subsection 7b77#b77;,a77ii71 by inserting subject to subsection 7p71 after 7ii72 and 7#b7 by adding at the end the following new subsection3 7p7 ,threshold for secondary payer provisions for certain workers' compensation settlement agreements 7#a7 ,in general ,a workers' compensation law or plan shall not be treated as a primary plan for purposes of subsection 7b7 with respect to a workers' compensation settlement agreement if the agreement 7or claimant under the agreement7 meets any of the following requirements3 7,a7 ,total settlement amount not exceeding #be1jjj ,such agreement has a total settlement amount 7as determined under paragraph 7#b77 that does not exceed #be1jjj or such greater amount as the ,secretary may specify in regulations4 7,b7 ,likely ineligibility of workers' compensation claimant for medicare benefits ,the claimant subject to such agreement-- 7i7 is not eligible for benefits under this title as of the effective date of the agreement2 and 7ii7 is unlikely to become so eligible1 as determined under paragraph 7#c71 within #cj months after such effective date4 7,c7 ,no future workers' compensation medical expenses ,the claimant subject to such agreement is not eligible for payment of medical expenses incurred after the effective date of the agreement from the workers' compensation law or plan of the jurisdiction in which such agreement will be effective4 7,d7 ,no limitation on future workers' compensation medical expenses ,such agreement does not limit or extinguish the right of the claimant to payment of medical expenses incurred after the effective date of such agreement by the workers' compensation law or plan of the jurisdiction in which the agreement will be effective4 7#b7 ,determination of total settlement amount of workers' compensation settlement agreement ,for purposes of paragraph 7#a77;,a7 and subsection 7q7 and with respect to a work-related injury or illness that is the subject of a workers' compensation settlement agreement1 the total settlement amount of the agreement is the sum of monetary wage replacement benefits1 attorney fees1 all future medical expenses1 repayment of ,medicare conditional payments1 payout totals for annuities to fund the expenses listed above1 and any previously settled portion of the workers' compensation claim4 7#c7 ,determination of likely ineligibility of claimant for medicare benefits ,for purposes of paragraph 7#a77;,b77ii71 a workers' compensation claimant shall be deemed unlikely to become eligible for benefits under this title within #cj months after the effective date of the agreement unless1 as of the effective date of the agreement1 such claimant is insured for disability insurance benefits under section #bbc7;c77#a7 and is described in any of the following subparagraphs3 7,a7 ,awarded disability benefits ,the individual has been awarded such disability insurance benefits4 7,b7 ,applied for disability ,the individual has applied for such disability insurance benefits4 7,c7 ,anticipates appeal ,the individual has been denied such disability insurance benefits but anticipates appealing that decision4 7,d7 ,appealing or refiling ,the individual is in the process of appealing or refiling for such disability insurance benefits4 7,e7 ,minimum age ,the individual is at least #fb years and #f months of age4 7,f7 ,end-stage renal disease ,the individual is medically determined to have end-stage renal disease but does not yet qualify for health benefits under section #bbf;,a based on such disease4 7#d7 ,definitions ,for purposes of this subsection and subsection 7q73 7,a7 ,compromise agreement ,the term compromise agreement means a workers' compensation settlement agreement that-- 7i7 applies to a workers' compensation claim that is denied or contested1 in whole or in part1 by a workers' compensation payer involved under the workers' compensation law or plan applicable to the jurisdiction in which the agreement has been settled2 and 7ii7 does not provide for a payment of the full amount of benefits sought or that may be payable under the workers' compensation claim4 7,b7 ,commutation agreement ,the term commutation agreement means a workers' compensation settlement agreement to settle all or a portion of a workers' compensation claim1 in which-- 7i7 liability for past and future benefits is not disputed2 and 7ii7 the parties to the agreement agree to include payment for future workers' compensation benefits payable after the date on which the agreement becomes effective4 7,c7 ,workers' compensation claimant ,the term workers' compensation claimant means a worker who-- 7i7 is or may be covered under a workers' compensation law or plan2 and 7ii7 submits a claim or accepts benefits under such law or plan for a work-related injury or illness4 7,d7 ,workers' compensation law or plan 7i7 ,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 7or for disability or death caused by such an injury or illness71 including the ,longshore and ,harbor ,workers' ,compensation ,act 7#cc ,u4,s4,c4 #ija-idd1 #idh-iej71 chapter #ha of title #e1 ,united ,states ,code 7known as the ,federal ,employees ,compensation ,act71 the ,black ,lung ,benefits ,act 7#cj ,u4,s4,c4 #ica et seq471 and part ,c of title #d of the ,federal ,coal ,mine and ,safety ,act 7#cj ,u4,s4,c4 #ija et seq471 but not including the ,act of ,april #bb1 #aijh 7#de ,u4,s4,c4 #ea et seq47 7popularly referred to as the ,federal ,employer's ,liability ,act74 7ii7 ,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 illness4 7,e7 ,workers' compensation payer ,the term workers' compensation payer means1 with respect to a workers' compensation law or plan1 a workers' compensation insurer1 self-insurer1 employer1 individual1 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 plan4 7,f7 ,workers' compensation settlement agreement ,the term workers' compensation settlement agreement means an agreement1 which includes a commutation agreement or compromise agreement1 or any combination of both1 between a claimant and one or more workers' compensation payers which-- 7i7 forecloses the possibility of future payment of some or all workers' compensation benefits involved2 and 7ii7 7,i7 compensates the claimant for a work-related injury or illness as provided for by a workers' compensation law or plan2 or 7,,ii7 eliminates cause for litigation involving issues in dispute between the claimant and payer4 4 7b7 ,satisfaction of secondary payer requirements through use of qualified medicare set-,asides under workers' compensation settlement agreements ,section #ahfb of the ,social ,security ,act 7#db ,u4,s4,c4 #aciey71 as amended by subsection 7a71 is further amended by adding at the end the following new subsection3 7q7 ,treatment of qualified ,medicare set-,asides under workers' compensation settlement agreements 7#a7 ,satisfaction of secondary payer requirements through use of qualified ,medicare set-asides 7,a7 ,full satisfaction of claim obligations 7i7 ,in general ,if a workers' compensation settlement agreement1 related to a claim of a workers' compensation claimant1 includes a qualified ,medicare set-aside 7as defined in paragraph 7#b771 such set-aside shall satisfy any obligation with respect to the present or future payment reimbursement under subsection 7b77#b7 with respect to such claim4 ,the ,secretary shall have no further recourse1 directly or indirectly1 under this title with respect to such agreement4 7ii7 ,rule of construction ,nothing in this section shall be construed as requiring the submission of a ,medicare set-aside to the ,secretary4 7,b7 ,medicare set-aside and ,medicare set-aside amount defined ,for purposes of this subsection3 7i7 ,medicare set-aside ,the term ,medicare set-aside means1 with respect to a workers' compensation settlement agreement1 a provision in the agreement that provides for a payment of a lump sum1 annuity1 a combination of a lump sum and an annuity1 or other amount that is in full satisfaction of the obligation described in subparagraph 7,a7 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 title1 but for subsection 7b77#b77;,a74 7ii7 ,medicare set-aside amount ,the term ,medicare set-aside amount means1 with respect to a ,medicare set-aside1 the actual dollar amount provided for in clause 7i74 7#b7 ,qualified ,medicare set-aside 7,a7 ,requirements of qualified ,medicare set-aside ,for purposes of this subsection1 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 7#a77;,a71 while meeting the requirements of subparagraphs 7,b7 and 7,c7 and giving due consideration to the following3 7i7 ,the illness or injury giving rise to the workers' compensation claim involved4 7ii7 ,the age and life expectancy of the claimant involved4 7iii7 ,the reasonableness of and necessity for future medical expenses for treatment of the illness or injury involved4 7iv7 ,the duration of and limitation on benefits payable under the workers' compensation law or plan involved4 7v7 ,the regulations and case law relevant to the ,state workers' compensation law or plan involved4 7,b7 ,items and services included ,a qualified ,medicare set-aside-- 7i7 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 plan2 and 7ii7 is not required to provide for payment for items and services that are not described in clause 7i74 7,c7 ,payment requirements 7i7 ,required use of workers' compensation fee schedule 7,i7 ,in general ,except in the case of an optional direct payment of a ,medicare set-aside made under paragraph 7#e77;,a71 the set-aside amount shall be based upon the payment amount for items and services under the workers' compensation fee schedule 7effective as of the date of the agreement7 applicable to the workers' compensation law or plan involved4 7,,ii7 ,workers' compensation fee schedule defined ,for purposes of this subsection1 the term workers' compensation fee schedule means1 with respect to a workers' compensation law or plan of a ,state or a similar plan applicable in a ,state1 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 7or in the absence of such a schedule1 the applicable medical reimbursement rate under such law or plan74 7ii7 ,optional proportional adjustment for compromise settlement agreements 7,i7 ,in general ,in the case of a compromise settlement agreement1 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 or contested portion of the claim not been subject to a compromise agreement4 ,the percentage reduction shall be equal to the denied or contested percentage of such total settlement4 ,such election may be made by a party to the agreement only with the written consent of the other party to the agreement4 7,,ii7 ,application ,if the claimant or workers' compensation payer elects to calculate the ,medicare set-aside amount under this clause1 the ,medicare set-aside shall be deemed a qualified ,medicare set-aside4 7,d7 ,certain ,medicare set-asides with safe harbor amount deemed qualified ,medicare set-asides 7i7 ,in general ,for purposes of this section and subject to clause 7iv71 a ,medicare set-aside of a workers' compensation settlement agreement shall be deemed a qualified ,medicare set-aside if the ,medicare set-aside amount involved is the safe harbor amount for the agreement and the agreement does not exceed #bej1jjj4 7ii7 ,written consent ,a safe harbor amount1 with respect to a workers' compensation agreement1 shall be treated as the ,medicare set-aside amount for such agreement for purposes of clause 7i7 only upon written consent of all parties to the agreement4 7iii7 ,safe harbor amount defined ,for purposes of this subsection1 the term safe harbor amount means1 with respect to a workers' compensation settlement agreement1 #ae percent of the total settlement amount of the agreement 7as determined under subsection 7p77#b771 excluding repayment of conditional payments and previously settled portions of the claim involved4 ,in applying the previous sentence for purposes of determining the safe harbor amount1 with respect to a workers' compensation agreement1 if the agreement includes an annuity1 the cost 7but not the payout of the annuity7 shall be included in determining the total settlement amount of the agreement4 7iv7 ,mandatory direct payment of safe harbor amount ,a ,medicare set-aside of a worker's compensation settlement agreement described in this paragraph may not be treated as a qualified set-aside under clause 7i7 unless an election is made under paragraph 7#e77;,a7 to transfer to the ,secretary a direct payment of such set-aside4 7,e7 ,secretarial authority with respect to deemed qualified ,medicare set-asides with safe harbor amount 7i7 ,determination ,if the ,secretary determines1 based on the data described in clause 7ii71 that the provisions of subparagraph 7,d7 have caused a significant negative financial impact 7as specified by the ,chief ,actuary of the ,centers for ,medicare ,medicaid ,services7 on the ,federal ,hospital ,insurance ,trust ,fund under section #ahag or the ,federal ,supplementary ,medical ,insurance ,trust ,fund under section #ahda1 then the ,secretary shall adopt rules to reduce such impact by modifying the amount of the percent described in subparagraph 7,d77iii74 7ii7 ,required data ,the determination under clause 7i7 shall be based on data on-- 7,i7 the projected effect of the provisions described in such paragraph on the ,federal ,hospital ,insurance ,trust ,fund under section #ahag or the ,federal ,supplementary ,medical ,insurance ,trust ,fund under section #ahda during the three-year period beginning on the date of the enactment of this subsection2 as compared to 7,,ii7 data on the effect on such trust funds of the provisions of subsection 7b71 as in effect during the three-year period prior to such date of enactment4 7#c7 ,process for approval of qualified medicare set-asides 7,a7 ,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 of the set-aside as a qualified ,medicare set-aside4 ,the set-aside shall be submitted in accordance with a procedure specified by the ,secretary4 7,b7 ,notice of determination of approval or disapproval ,not later than #fj days after the date on which the ,secretary receives a submission under subparagraph 7,a71 the ,secretary shall notify in writing the parties to the workers' compensation settlement agreement of the determination of approval or disapproval4 ,if the determination disapproves such submission the ,secretary shall include with such notification the specific reasons for the disapproval4 ,a determination that disapproves a submission is not valid if the determination does not include a specific explanation of each deficiency of the submission4 7#d7 ,appeals 7,a7 ,in general ,a party to a workers' compensation settlement agreement that is dissatisfied with a determination under paragraph 7#c77;,b71 upon filing a request for reconsideration with the ,secretary not later than #fj days after the date of notice of such determination1 shall be entitled to-- 7i7 reconsideration of the determination by the ,secretary 7with respect to such determination72 7ii7 a hearing before an administrative judge thereon after such reconsideration2 and 7iii7 judicial review of the ,secretary's final determination after such hearing4 7,b7 ,deadlines for decisions 7i7 ,reconsiderations 7,i7 ,in general ,the ,secretary shall conduct and conclude a reconsideration of a determination under subparagraph 7,a77i7 and mail the notice of the decision of such reconsideration to the party involved by not later than the last day of the #cj-;day period beginning on the date that a request for such reconsideration has been timely filed4 7,,ii7 ,appeals of reconsiderations ,if a party to the workers' compensation settlement involved is dissatisfied with the ,secretary's decision under subclause 7,i7 that party may file an appeal within the #cj-;day period after the date of receipt of the notice of the decision under such subclause and request a hearing before an administrative law judge4 7,,iii7 ,failure by secretary to provide notice ,in the case of a failure by the ,secretary to mail the notice of the decision under subclause 7,i7 by the last day of the period described in such subclause1 the ,secretary shall be deemed to have approved the submission as submitted under paragraph 7#c77;,a74 7ii7 ,hearings 7,i7 ,in general ,an administrative law judge shall conduct and conclude a hearing on a decision of the ,secretary under clause 7i7 and render a decision on such hearing by not later than the last day of the #ij-;day period beginning on the date that a request for such hearing has been timely filed4 7,,ii7 ,judicial review ,a decision under subclause 7,i7 by an administrative law judge constitutes a final agency action and is subject to judicial review4 7,,iii7 ,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 7,i7 by the last day of the period described in such subclause1 the party requesting the hearing may seek judicial review of the decision under clause 7i71 notwithstanding any requirements for a hearing for purposes of the party's right to such judicial review4 7#e7 ,administration of medicare set-aside provisions2 protection from certain liability 7,a7 ,optional direct payment of medicare set-aside amount 7i7 ,election for direct payment of medicare set-aside ,with respect to a claim for which a workers' compensation settlement agreement is established1 a claimant or workers' compensation payer who is party to the agreement may elect1 but is not required1 to transfer to the ,secretary a direct payment of the qualified ,medicare set-aside4 ,with respect to a qualified ,medicare set-aside paid directly to the ,secretary1 the parties involved may calculate the ,medicare set-aside amount of such set-aside using any of the following methods3 7,i7 ,in the case of any ,medicare set-aside of a compromise settlement agreement under paragraph 7#b77;,c77ii71 the amount calculated in accordance with such paragraph4 7,,ii7 ,in the case of any ,medicare set-aside1 the amount based upon the payment amount for items and services under the workers' compensation fee schedule 7effective as of the date of the agreement7 applicable to the workers' compensation law or plan involved1 in accordance with paragraph 7#b77;,c77i77,i74 7,,iii7 ,in the case of any ,medicare set-aside1 the payment amount applicable to the items and services under this title as in effect on the effective date of the agreement4 ,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 agreement4 7ii7 ,election satisfying liability ,an election made under clause 7i71 with respect to a qualified ,medicare set-aside shall satisfy any payment1 in relation to the underlying claim of the related workers' compensation settlement agreement1 required under subsection 7b77#b7 to be made by the claimant or payer to the ,secretary4 ,the ,secretary shall have no further recourse1 directly or indirectly1 under this title with respect to such agreement4 7,b7 ,protection from certain liability 7i7 ,liability for medicare set-aside payment greater than payment under workers' compensation law ,no workers' compensation claimant1 workers' compensation payer1 employer1 administrator of the ,medicare set-aside1 legal representative of the claimant1 payer1 employer1 or administrator1 or any other party related to the claimant1 payer1 employer1 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 7or in the absence of such schedule1 the medical reimbursement rate7 under the compensation law or plan of the jurisdiction where the agreement will be effective4 7ii7 ,liability for provider charges greater than payment under workers' compensation agreement ,with respect to a workers' compensation settlement agreement1 a provider may not bill 7or collect any amount from7 the workers' compensation claimant1 workers' compensation payer1 employer1 administrator of the ,medicare set-aside1 legal representative of the claimant1 payer1 employer1 or administrator1 or any other party related to the claimant1 payer1 employer1 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 agreement4 ,no person is liable for payment of any amounts billed for an item or service in violation of the previous sentence4 ,if a provider willfully bills 7or collects an amount7 for such an item or service in violation of such sentence1 the ,secretary may apply sanctions against the provider in accordance with section #ahdb7;j77#b7 in the same manner as such section applies with respect to a physician4 ,paragraph 7#d7 of section #ahdb7;j7 shall apply under this clause in the same manner as such paragraph applies under such section4 7#f7 ,treatment of ,state workers' compensation law ,for purposes of this subsection and subsection 7p71 if a workers' compensation settlement agreement is accepted1 reviewed1 approved1 or otherwise finalized in accordance with the workers' compensation law of the jurisdiction in which such agreement will be effective1 such acceptance1 review1 approval1 or other finalization shall be deemed conclusive as to any and all matters within the jurisdiction of the workers' compensation law1 including the determination of reasonableness of the settlement value2 any allocations of settlement funds2 the projection of future indemnity or medical benefits that may be payable under the ,state workers' compensation law2 and1 in the case of a compromise agreement1 the total amount that could have been payable for a claim which is the subject of such agreement in accordance with paragraph 7#b77;,c77ii74 ,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 ,secretary4 4 7c7 ,conforming amendments ,subsection 7b7 of such section is further amended-- 7#a7 in paragraph 7#b77;,b77ii71 by striking ,a primary plan and inserting ,subject to subsections 7p7 and 7q71 a primary plan2 7#b7 in paragraph 7#b77;,b77iii7-- 7,a7 in the first sentence1 by striking ,in order to recover payment and inserting ,subject to subsection 7q71 in order to recover payment2 and 7,b7 in the third sentence1 by striking ,in addition and inserting ,subject to subsection 7q71 in addition2 and 7#c7 in paragraph 7#c77;,a71 by striking ,there is established a private cause of action and inserting ,subject to subsection 7q71 there is established a private cause of action4 7d7 ,modernizing terminology for purposes of medicare secondary payer provisions ,subsection 7b77#b77;,a7 of such section is amended by striking workmen's compensation law or plan and inserting workers' compensation law or plan each place it appears4 #c4 ,limitation on liability ,the parties to a workers' compensation settlement agreement which met the provisions of section #ahfb7;b7 of the ,social ,security ,act 7#db ,u4,s4,c4 #aciey7b77 on the effective date of settlement shall be accepted as meeting the requirements of such section notwithstanding changes in law1 regulations1 or administrative interpretation of such provisions after the effective date of such settlement4 ,nothing in section #ahfb7;b7 of the ,social ,security ,act 7#db ,u4,s4,c4 #aciey7b77 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 enactment1 except in the case of fraud4 #d4 ,effective date ,the amendments made by this ,act shall apply to a workers' compensation settlement agreement with an effective date on or after the date of the enactment of this ,act4