COMP Act

I 117TH CONGRESS 1ST SESSION H. R. 3124 To amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers’ compensation set- tlement agreements and qualified Medicare set-aside provisions. IN THE HOUSE OF REPRESENTATIVES MAY 11, 2021 Mr. THOMPSON of California introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall with- in the jurisdiction of the committee concerned A BILL To amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers’ compensation settlement agreements and qualified Medicare set-aside provisions. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Coordination Of Medi- 4 care Payments and Worker’s Compensation Act’’ or the 5 ‘‘COMP Act’’. 6 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3124 IH SEC. 2. APPLICATION OF MEDICARE SECONDARY PAYER 1 RULES TO CERTAIN WORKERS’ COMPENSA- 2 TION SETTLEMENT AGREEMENTS. 3 (a) SECONDARY PAYER PROVISIONS FOR WORKERS’ 4 COMPENSATION SETTLEMENT AGREEMENTS.—Section 5 1862 of the Social Security Act (42 U.S.C. 1395y) is 6 amended— 7 (1) in subsection (b)(2)(A)(ii), by inserting 8 ‘‘subject to subsection (p),’’ after ‘‘(ii)’’; and 9 (2) by adding at the end the following new sub- 10 section: 11 ‘‘(p) DEFINITIONS.—For purposes of this subsection 12 and subsection (q): 13 ‘‘(1) COMPROMISE AGREEMENT.—The term 14 ‘compromise agreement’ means a workers’ com- 15 pensation settlement agreement that— 16 ‘‘(A) applies to a workers’ compensation 17 claim that is denied or contested, in whole or in 18 part, by a workers’ compensation payer involved 19 under the workers’ compensation law or plan 20 applicable to the jurisdiction in which the 21 agreement has been settled; and 22 ‘‘(B) does not provide for a payment of the 23 full amount of benefits sought or that may be 24 payable under the workers’ compensation claim. 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3124 IH ‘‘(2) WORKERS’ COMPENSATION CLAIMANT.— 1 The term ‘workers’ compensation claimant’ means a 2 worker who— 3 ‘‘(A) is or may be covered under a workers’ 4 compensation law or plan; and 5 ‘‘(B) submits a claim or accepts benefits 6 under such law or plan for a work-related in- 7 jury or illness. 8 ‘‘(3) WORKERS’ COMPENSATION LAW OR 9 PLAN.— 10 ‘‘(A) IN GENERAL.—The term ‘workers’ 11 compensation law or plan’ means a law or pro- 12 gram administered by a State or the United 13 States to provide compensation to workers for 14 a work-related injury or illness (or for disability 15 or death caused by such an injury or illness), 16 including the Longshore and Harbor Workers’ 17 Compensation Act (33 U.S.C. 901–944, 948– 18 950), chapter 81 of title 5, United States Code 19 (known as the Federal Employees Compensa- 20 tion Act), the Black Lung Benefits Act (30 21 U.S.C. 931 et seq.), and part C of title 4 of the 22 Federal Coal Mine and Safety Act (30 U.S.C. 23 901 et seq.), but not including the Act of April 24 22, 1908 (45 U.S.C. 51 et seq.) (popularly re- 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3124 IH ferred to as the Federal Employer’s Liability 1 Act). 2 ‘‘(B) INCLUSION OF SIMILAR COMPENSA- 3 TION PLAN.—Such term includes a similar com- 4 pensation plan established by an employer that 5 is funded by such employer or the insurance 6 carrier of such employer to provide compensa- 7 tion to a worker of such employer for a work- 8 related injury or illness. 9 ‘‘(4) WORKERS’ COMPENSATION PAYER.—The 10 term ‘workers’ compensation payer’ means, with re- 11 spect to a workers’ compensation law or plan, a 12 workers’ compensation insurer, self-insurer, em- 13 ployer, individual, or any other entity that is or may 14 be liable for the payment of benefits to a workers’ 15 compensation claimant pursuant to the workers’ 16 compensation law or plan. 17 ‘‘(5) WORKERS’ COMPENSATION SETTLEMENT 18 AGREEMENT.—The term ‘workers’ compensation set- 19 tlement agreement’ means an agreement, between a 20 claimant and one or more workers’ compensation 21 payers which— 22 ‘‘(A) forecloses the possibility of future 23 payment of some or all workers’ compensation 24 benefits involved; and 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3124 IH ‘‘(B)(i) compensates the claimant for a 1 work-related injury or illness as provided for by 2 a workers’ compensation law or plan; or 3 ‘‘(ii) eliminates cause for litigation involv- 4 ing issues in dispute between the claimant and 5 payer.’’. 6 (b) SATISFACTION OF SECONDARY PAYER OBLIGA- 7 TIONS.—Section 1862 of the Social Security Act (42 8 U.S.C. 1395y), as amended by subsection (a), is further 9 amended by adding at the end the following new sub- 10 section: 11 ‘‘(q) TREATMENT OF MEDICARE SET-ASIDES UNDER 12 WORKERS’ COMPENSATION SETTLEMENT AGREE- 13 MENTS.— 14 ‘‘(1) SATISFACTION OF SECONDARY PAYER OB- 15 LIGATIONS.— 16 ‘‘(A) FULL SATISFACTION OF CLAIM OBLI- 17 GATIONS.— 18 ‘‘(i) IN GENERAL.—If a workers’ com- 19 pensation settlement agreement, related to 20 a claim of a workers’ compensation claim- 21 ant, includes a Medicare set-aside (as de- 22 fined in subparagraph (B)(i)), such set- 23 aside shall satisfy any obligation with re- 24 spect to payments reasonably expected to 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3124 IH be made under subsection (b)(2)(A)(ii) 1 with respect to such claim. 2 ‘‘(ii) RULE OF CONSTRUCTION.— 3 Nothing in this section shall be construed 4 as requiring the submission of a Medicare 5 set-aside to the Secretary. 6 ‘‘(B) MEDICARE SET-ASIDE AND MEDI- 7 CARE SET-ASIDE AMOUNT DEFINED.—For pur- 8 poses of this subsection: 9 ‘‘(i) MEDICARE SET-ASIDE.—The 10 term ‘Medicare set-aside’ means, with re- 11 spect to a workers’ compensation settle- 12 ment agreement, a provision in the agree- 13 ment that provides for a payment of a 14 lump sum, annuity, a combination of a 15 lump sum and an annuity, or other 16 amount that is in full satisfaction of the 17 obligation described in subparagraph (A) 18 for items and services that the workers’ 19 compensation claimant under the agree- 20 ment received or is reasonably expected to 21 receive under the applicable workers’ com- 22 pensation law. 23 ‘‘(ii) MEDICARE SET-ASIDE 24 AMOUNT.—The term ‘Medicare set-aside 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3124 IH amount’ means, with respect to a Medicare 1 set-aside, the actual dollar amount pro- 2 vided for in clause (i). 3 ‘‘(2) MEDICARE SET-ASIDE.— 4 ‘‘(A) SATISFACTION OF MEDICARE SET- 5 ASIDE.—For purposes of this subsection, a 6 Medicare set-aside meets Medicare secondary 7 payer obligations if the Medicare set-aside 8 amount reasonably takes into account the full 9 payment obligation described in paragraph 10 (1)(A), while meeting the requirements of sub- 11 paragraphs (B) and (C) and is determined 12 based on the following: 13 ‘‘(i) The illness or injury giving rise to 14 the workers’ compensation claim involved. 15 ‘‘(ii) The age and life expectancy of 16 the claimant involved. 17 ‘‘(iii) The reasonableness of and ne- 18 cessity for future medical expenses for 19 treatment of the illness or injury involved. 20 ‘‘(iv) The duration of and limitation 21 on benefits payable under the workers’ 22 compensation law or plan involved. 23 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3124 IH ‘‘(v) The regulations and case law rel- 1 evant to the State workers’ compensation 2 law or plan involved. 3 ‘‘(B) ITEMS AND SERVICES INCLUDED.—A 4 Medicare set-aside— 5 ‘‘(i) shall include payment for items 6 and services that are covered and otherwise 7 payable under this title as of the effective 8 date of the workers’ compensation settle- 9 ment agreement and that are covered by 10 the workers’ compensation law or plan; 11 and 12 ‘‘(ii) is not required to provide for 13 payment for items and services that are 14 not described in clause (i). 15 ‘‘(C) PAYMENT REQUIREMENTS.— 16 ‘‘(i) REQUIRED APPLICATION OF 17 WORKERS’ COMPENSATION LAW AND FEE 18 SCHEDULE.— 19 ‘‘(I) IN GENERAL.—Except in the 20 case of an optional direct payment of 21 a Medicare set-aside made under 22 paragraph (5)(A), the set-aside 23 amount shall be based upon the pay- 24 ment amount for items and services 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 3124 IH under the workers’ compensation law 1 or plan and applicable fee schedule 2 (effective as of the date of the agree- 3 ment). 4 ‘‘(II) WORKERS’ COMPENSATION 5 FEE SCHEDULE DEFINED.—For pur- 6 poses of this subsection, the term 7 ‘workers’ compensation fee schedule’ 8 means, with respect to a workers’ 9 compensation law or plan of a State 10 or a similar plan applicable in a State, 11 the schedule of payment amounts the 12 State has established to pay providers 13 for items and services furnished to 14 workers who incur a work-related in- 15 jury or illness as defined under such 16 law or plan (or in the absence of such 17 a schedule, the applicable medical re- 18 imbursement rate under such law or 19 plan). 20 ‘‘(ii) OPTIONAL PROPORTIONAL AD- 21 JUSTMENT FOR COMPROMISE SETTLEMENT 22 AGREEMENTS.—In the case of a com- 23 promise settlement agreement, a claimant 24 or workers’ compensation payer who is 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 3124 IH party to the agreement may elect to cal- 1 culate the Medicare set-aside amount of 2 the agreement by applying a percentage re- 3 duction to the Medicare set-aside amount 4 for the total settlement amount that could 5 have been payable under the applicable 6 workers’ compensation law or similar plan 7 involved had the denied, disputed, or con- 8 tested portion of the claim not been subject 9 to a compromise agreement. The percent- 10 age reduction shall be equal to the denied, 11 disputed, or contested percentage of such 12 total settlement. Such election may be 13 made by a party to the agreement only 14 with the written consent of the other party 15 or parties to the agreement. 16 ‘‘(3) OPTIONAL PROCESS FOR APPROVAL OF 17 MEDICARE SET-ASIDES.— 18 ‘‘(A) OPTIONAL PRIOR APPROVAL BY SEC- 19 RETARY.—A party to a workers’ compensation 20 settlement agreement that includes a Medicare 21 set-aside may submit to the Secretary the Medi- 22 care set-aside amount for approval. 23 ‘‘(B) NOTICE OF DETERMINATION OF AP- 24 PROVAL OR DISAPPROVAL.—Not later than 60 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 3124 IH days after the date on which the Secretary re- 1 ceives a submission under subparagraph (A), 2 the Secretary shall notify in writing the parties 3 to the workers’ compensation settlement agree- 4 ment of the determination of approval or dis- 5 approval. If the determination disapproves such 6 submission the Secretary shall include with 7 such notification the specific reasons for the 8 disapproval. 9 ‘‘(4) APPEALS.— 10 ‘‘(A) IN GENERAL.—A party to a workers’ 11 compensation settlement agreement that is dis- 12 satisfied with a determination under paragraph 13 (3)(B), upon filing a request for reconsideration 14 with the Secretary not later than 60 days after 15 the date of notice of such determination, shall 16 be entitled to— 17 ‘‘(i) reconsideration of the determina- 18 tion by the Secretary (with respect to such 19 determination); 20 ‘‘(ii) a hearing before an administra- 21 tive law judge thereon after such reconsid- 22 eration; and 23 ‘‘(iii) judicial review of the Secretary’s 24 final determination after such hearing. 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 3124 IH ‘‘(5) ADMINISTRATION OF MEDICARE SET-ASIDE 1 PROVISIONS.— 2 ‘‘(A) OPTIONAL DIRECT PAYMENT OF 3 MEDICARE SET-ASIDE AMOUNT.— 4 ‘‘(i) ELECTION FOR DIRECT PAYMENT 5 OF MEDICARE SET-ASIDE AMOUNT.—Effec- 6 tive 30 days after the date of enactment of 7 this subsection, with respect to a claim for 8 which a workers’ compensation settlement 9 agreement is or has been established, a 10 claimant or workers’ compensation payer 11 who is party to the agreement may elect, 12 but is not required, to transfer to the Sec- 13 retary a direct payment of the Medicare 14 set-aside amount. The parties involved may 15 calculate the Medicare set-aside amount of 16 such set-aside using any of the following 17 methods: 18 ‘‘(I) In the case of any Medicare 19 set-aside of a compromise settlement 20 agreement under paragraph (2)(C)(ii), 21 the amount calculated in accordance 22 with such paragraph. 23 ‘‘(II) In the case of any Medicare 24 set-aside, the amount based upon the 25 VerDate Sep 11 2014 00:14 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3124.IH H3124 kjohnson on DSK79L0C42PROD with BILLS 13 •HR 3124 IH payment amount for items and serv- 1 ices under the workers’ compensation 2 law or plan and fee schedule (effective 3 as of the date of the agreement) in ac- 4 cordance with paragraph (2)(C)(i)(I). 5 ‘‘(III) In the case of any Medi- 6 care set-aside, the payment amount 7 applicable to the items and services 8 under this title as in effect on the ef- 9 fective date of the agreement. 10 Such transfer shall be made only upon 11 written consent of the other party or par- 12 ties to the agreement. 13 ‘‘(ii) ELECTION SATISFYING LIABIL- 14 ITY.—An election made under clause (i), 15 with respect to a qua [Text truncated for display. 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