Medicare Secondary Payer and Workers' Compensation Settlement Agreements Act of 2009 - Amends title XVIII (Medicare) of the Social Security Act to: (1) create an exception to Medicare secondary payer requirements for certain workers' compensation settlement agreements; and (2) provide for the satisfaction of such requirements through use of qualified Medicare set-asides under workers' compensation settlement agreements.
[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2641 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 2641
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.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 21, 2009
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 concerned
_______________________________________________________________________
A BILL
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.
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 2009''.
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--
(1) in subsection (b)(2)(A)(ii), by inserting ``subject to
subsection (n),'' after ``(ii)''; and
(2) by adding at the end the following new subsection:
``(n) Exception From Secondary Payer Provisions for Certain
Workers' Compensation Settlement Agreements.--
``(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.
``(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:
``(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.
``(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.
``(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.
``(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.
The Secretary may adopt rules for an increase in the dollar
amount specified under subparagraph (A).
``(3) Determination of present value of workers'
compensation settlement agreement.--
``(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:
``(i) The amount of any cash payment.
``(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).
``(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.
``(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:
``(i) Payments to satisfy previous unpaid
medical expenses.
``(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.
``(iii) The attorney fees for the claimant
involved.
``(iv) Any other procurement costs incurred
by a party to the agreement to secure the
agreement.
``(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:
``(A) Awarded disability benefits.--The claimant
has been awarded disability insurance benefits.
``(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.
``(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.
``(D) Minimum age.--The claimant is at least 62
years and 6 months of age.
``(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.
``(5) Definitions.--For purposes of this subsection and
subsection (o):
``(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--
``(i) to foreclose the possibility of
future payment of some or all workers'
compensation benefits involved; and
``(ii)(I) to compensate the claimant for a
work-related injury or illness as provided for
by a workers' compensation law or plan; or
``(II) to eliminate cause for litigation
involving issues in dispute between the
claimant and payer.
``(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.
``(C) Workers' compensation claimant.--The term
`workers' compensation claimant' means a worker who--
``(i) is or may be covered under a workers'
compensation law or plan (or similar
compensation plan); and
``(ii) submits a claim or accepts benefits
under such law or plan (or similar compensation
plan) for a work-related injury or illness.
``(D) Workers' compensation law or plan.--
``(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).
``(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.
``(E) Compromise agreement.--The term `compromise
agreement' means a workers' compensation settlement
agreement that--
``(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; and
``(ii) does not provide for a payment of
the full amount of benefits sought or payable
under the workers' compensation claim.
``(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--
``(i) liability for past and future
benefits is not disputed; and
``(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.''.
(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:
``(o) Treatment of Qualified Medicare Set-Asides Under Workers'
Compensation Settlement Agreements.--
``(1) Satisfaction of secondary payer requirements through
use of qualified medicare set-asides.--
``(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 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.
``(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
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).
``(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).
``(2) Qualified medicare set-aside.--
``(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:
``(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.
``(B) Items and services included.--The Medicare
set-aside--
``(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; 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 use of workers' compensation
fee schedule.--
``(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.
``(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) Required payment adjustment for
certain fees.--The Medicare set-aside amount
otherwise computed shall be reduced by--
``(I) the amount of the direct
costs and expenses incurred in
establishing, administering, or
securing approval for the Medicare set-
aside; and
``(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.
``(iii) Optional proportional adjustment
for compromise settlement agreements.--
``(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.
``(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.
``(3) Process for approval of qualified 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 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.
``(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).
``(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.
``(4) Safe harbor for certain medicare set-asides.--
``(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.
``(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)).
``(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.
``(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).
``(5) 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
judge thereon; and
``(iii) judicial review of the Secretary's
final determination after such hearing.
``(B) Deadlines for decisions.--
``(i) Reconsiderations.--
``(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.
``(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.
``(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.
``(ii) Hearings.--
``(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.
``(II) Judicial review.--A decision
under subclause (I) by an
administrative law judge constitutes a
final agency action and is subject to
judicial review.
``(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.
``(6) Administration of medicare set-aside provisions;
protection from certain liability.--
``(A) Optional direct payment of medicare set-aside
amount.--
``(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:
``(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.
``(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.
``(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).
``(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.
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.
``(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.
``(B) Requirement for timely notice of medicare
repayments owed by workers' compensation claimant or
payer to secretary.--
``(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.
``(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.
``(C) Protection from certain liability.--
``(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.
``(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.
``(D) Authority to modify or terminate qualified
medicare set-asides.--
``(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.
``(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.
``(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:
``(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.
``(II) Assurances satisfactory to
the Secretary that such notice was sent
by certified mail to the address of
record of such designated party.
``(III) A copy of such notice.
``(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).
``(v) Effective dates for modifications and
terminations.--
``(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.
``(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.
``(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.
``(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.''.
(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--
(1) in paragraph (2)(B)(ii), by striking ``A primary plan''
and inserting ``Subject to subsections (n) and (o), a primary
plan'';
(2) in paragraph (2)(B)(iii)--
(A) in the first sentence, by striking ``In order
to recover payment'' and inserting ``Subject to
subsection (o), in order to recover payment''; and
(B) in the third sentence, by striking ``In
addition'' and inserting ``Subject to subsection (o),
in addition''; and
(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''.
(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.
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.
(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.
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.
<all>
Introduced in House
Introduced in House
Referred to House Ways and Means
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.
Referred to House Energy and Commerce
Referred to the Subcommittee on Health.
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