[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3079 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3079

  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 SENATE OF THE UNITED STATES

                             June 18, 2018

Mr. Portman (for himself and Mr. Nelson) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 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 ``Medicare Secondary Payer and 
Workers' Compensation Settlement Agreements Act of 2018''.

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 State 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 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).
                            ``(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) 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--
                            ``(i) reconsideration of the determination 
                        by the Secretary (with respect to such 
                        determination);
                            ``(ii) a hearing before an administrative 
                        law judge thereon after such reconsideration; 
                        and
                            ``(iii) 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 state 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 State 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, 2018.
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