‘‘(i) IN GENERAL.—If a workers’ com-
pensation settlement agreement, related to 
a claim of a workers’ compensation claim-
ant, includes a qualified Medicare set-aside 
(as defined in paragraph (2)), such set- 
aside shall satisfy any obligation with re-
spect to the present or future payment re-
imbursement under subsection (b)(2) with 
respect to such claim. The Secretary shall 
have no further recourse, directly or indi-
rectly, under this title with respect to such 
agreement. 
‘‘(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
MEDI-
CARE SET-ASIDE AMOUNT DEFINED.—For pur-
poses of this subsection: 
‘‘(i) 
MEDICARE
SET-ASIDE.—The 
term ‘Medicare set-aside’ means, with re-
spect to a workers’ compensation settle-
ment agreement, a provision in the agree-
ment that provides for a payment of a 
lump sum, annuity, a combination of a 
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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 agree-
ment 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 MEDI-
CARE
SET-ASIDE.—For purposes of this sub-
section, 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 para-
graph (1)(A), while meeting the requirements of 
subparagraphs (B) and (C) and giving due con-
sideration to the following: 
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‘‘(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 ne-
cessity 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 rel-
evant to the State workers’ compensation 
law or plan involved. 
‘‘(B) ITEMS AND SERVICES INCLUDED.—A 
qualified Medicare set-aside— 
‘‘(i) shall include payment for items 
and services that are authorized for pay-
ment under this title as of the effective 
date of the workers’ compensation settle-
ment agreement involved and that are cov-
ered 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). 
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‘‘(C) PAYMENT REQUIREMENTS.— 
‘‘(i) REQUIRED
USE
OF
WORKERS’ 
COMPENSATION 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 pay-
ment amount for items and services 
under the workers’ compensation fee 
schedule (effective as of the date of 
the agreement) applicable to the work-
ers’ compensation law or plan in-
volved. 
‘‘(II) WORKERS’ COMPENSATION 
FEE SCHEDULE DEFINED.—For pur-
poses 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 in-
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jury or illness as defined under such 
law or plan (or in the absence of such 
a schedule, the applicable medical re-
imbursement rate under such law or 
plan). 
‘‘(ii) OPTIONAL
PROPORTIONAL
AD-
JUSTMENT FOR COMPROMISE SETTLEMENT 
AGREEMENTS.— 
‘‘(I) IN GENERAL.—In the case 
of a compromise settlement agree-
ment, a workers’ compensation claim-
ant 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’ com-
pensation law or similar plan involved 
had the denied or contested portion of 
the claim not been subject to a com-
promise agreement. The percentage 
reduction shall be equal to the denied 
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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 Medi-
care set-aside shall be deemed a quali-
fied Medicare set-aside. 
‘‘(D) 
CERTAIN
MEDICARE
SET-ASIDES 
WITH SAFE HARBOR AMOUNT DEEMED QUALI-
FIED MEDICARE SET-ASIDES.— 
‘‘(i) IN
GENERAL.—For purposes of 
this section and subject to clause (iv), a 
Medicare set-aside of a workers’ compensa-
tion settlement agreement shall be deemed 
a qualified Medicare set-aside if the Medi-
care set-aside amount involved is the safe 
harbor amount for the agreement and the 
agreement does not exceed $250,000. 
‘‘(ii) WRITTEN
CONSENT.—A safe 
harbor amount, with respect to a workers’ 
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compensation agreement, shall be treated 
as the Medicare set-aside amount for such 
agreement for purposes of clause (i) only 
upon written consent of all parties to the 
agreement. 
‘‘(iii) SAFE
HARBOR
AMOUNT
DE-
FINED.—For purposes of this subsection, 
the term ‘safe harbor amount’ means, with 
respect to a workers’ compensation settle-
ment agreement, 15 percent of the total 
settlement amount of the agreement (as 
determined under subsection (p)(2)), ex-
cluding repayment of conditional payments 
and previously settled portions of the claim 
involved. In applying the previous sentence 
for purposes of determining the safe har-
bor amount, with respect to a workers’ 
compensation agreement, if the agreement 
includes an annuity, the cost (but not the 
payout of the annuity) shall be included in 
determining the total settlement amount of 
the agreement. 
‘‘(iv) MANDATORY
DIRECT
PAYMENT 
OF SAFE HARBOR AMOUNT.—A Medicare 
set-aside of a worker’s compensation settle-
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ment agreement may not be treated as a 
qualified set-aside under clause (i) unless 
an election is made under paragraph 
(5)(A) to transfer to the Secretary a direct 
payment of such set-aside. 
‘‘(E) SECRETARIAL AUTHORITY WITH RE-
SPECT TO DEEMED QUALIFIED MEDICARE SET- 
ASIDES.— 
‘‘(i) DETERMINATION.—If the Sec-
retary determines, based on the data de-
scribed in clause (ii), that the provisions of 
subparagraph (D) have caused a signifi-
cant negative financial impact (as specified 
by the Chief Actuary of the Centers for 
Medicare & Medicaid Services) on the Fed-
eral Hospital Insurance Trust Fund under 
section 1817 or the Federal Supplementary 
Medical Insurance Trust Fund under sec-
tion 1841, then the Secretary shall adopt 
rules to reduce such impact by modifying 
the amount of the percent described in 
subparagraph (D)(iii). 
‘‘(ii) REQUIRED
DATA.—The deter-
mination under clause (i) shall be based on 
data on— 
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‘‘(I) the projected effect of the 
provisions described in such para-
graph on the Federal Hospital Insur-
ance Trust Fund under section 1817 
or the Federal Supplementary Medical 
Insurance Trust Fund under section 
1841 during the three-year period be-
ginning on the date of the enactment 
of this subsection; as compared to 
‘‘(II) data on the effect on such 
trust funds of the provisions of sub-
section (b), as in effect during the 
three-year period prior to such date of 
enactment. 
‘‘(3) PROCESS FOR APPROVAL OF QUALIFIED 
MEDICARE SET-ASIDES.— 
‘‘(A) OPTIONAL PRIOR APPROVAL BY SEC-
RETARY.—A party to a workers’ compensation 
settlement agreement that includes a Medicare 
set-aside may submit to the Secretary the set- 
aside for approval of the set-aside as a qualified 
Medicare set-aside. The set-aside shall be sub-
mitted in accordance with a procedure specified 
by the Secretary. 
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‘‘(B) NOTICE OF DETERMINATION OF AP-
PROVAL OR DISAPPROVAL.—Not later than 60 
days after the date on which the Secretary re-
ceives a submission under subparagraph (A), 
the Secretary shall notify in writing the parties 
to the workers’ compensation settlement agree-
ment of the determination of approval or dis-
approval. 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) APPEALS.— 
‘‘(A) IN GENERAL.—A party to a workers’ 
compensation settlement agreement that is dis-
satisfied 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 determina-
tion by the Secretary (with respect to such 
determination); 
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‘‘(ii) a hearing before an administra-
tive 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 Sec-
retary shall conduct and conclude a 
reconsideration of a determination 
under subparagraph (A)(i) and mail 
the notice of the decision of such re-
consideration to the party involved 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 RECONSIDER-
ATIONS.—If a party to the workers’ 
compensation settlement involved is 
dissatisfied with the Secretary’s deci-
sion 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 sub-
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clause 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 de-
scribed in such subclause, the Sec-
retary shall be deemed to have ap-
proved the submission as submitted 
under paragraph (3)(A). 
‘‘(ii) HEARINGS.— 
‘‘(I) IN GENERAL.—An adminis-
trative 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 deci-
sion under subclause (I) by an admin-
istrative law judge constitutes a final 
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agency action and is subject to judi-
cial review. 
‘‘(III) FAILURE BY ADMINISTRA-
TIVE 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), not-
withstanding any requirements for a 
hearing for purposes of the party’s 
right to such judicial review. 
‘‘(5) ADMINISTRATION OF MEDICARE SET-ASIDE 
PROVISIONS; PROTECTION
FROM
CERTAIN
LIABIL-
ITY.— 
‘‘(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 work-
ers’ compensation payer who is party to 
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the agreement may elect, but is not re-
quired, to transfer to the Secretary a di-
rect payment of the qualified Medicare set- 
aside. With respect to a qualified Medicare 
set-aside paid directly to the Secretary, the 
parties involved may calculate the Medi-
care 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 serv-
ices under the workers’ compensation 
fee schedule (effective as of the date 
of the agreement) applicable to the 
workers’ compensation law or plan in-
volved, in accordance with paragraph 
(2)(C)(i)(I). 
‘‘(III) In the case of any Medi-
care set-aside, the payment amount 
applicable to the items and services 
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under this title as in effect on the ef-
fective date of the agreement. 
Such transfer shall be in accordance with 
a procedure established by the Secretary 
and shall be made only upon written con-
sent of the other party to the agreement. 
‘‘(ii) ELECTION
SATISFYING
LIABIL-
ITY.—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 agree-
ment, required under subsection (b)(2) to 
be made by the claimant or payer to the 
Secretary. The Secretary shall have no fur-
ther recourse, directly or indirectly, under 
this title with respect to such agreement. 
‘‘(B) REQUIREMENT FOR TIMELY NOTICE 
OF MEDICARE REPAYMENTS OWED BY WORK-
ERS’ 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’ com-
pensation claimant or workers’ compensa-
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tion payer for documentation of any condi-
tional 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 docu-
mentation shall be sufficient for the claim-
ant or payer to make a reasonable deter-
mination 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 inappro-
priate items or services, shall discharge 
further liability with respect to the condi-
tional payment. 
‘‘(ii) 
LIABILITY
FOR
REIMBURSE-
MENTS RELATED TO REQUESTED INFOR-
MATION.—If the Secretary fails to provide 
information in accordance with clause (i), 
then neither the claimant nor the payer de-
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scribed in such clause shall be liable for 
any 
reimbursement 
under 
subsection 
(b)(2)(B) with respect to the conditional 
payment for which information was re-
quested under such clause. 
‘‘(C) PROTECTION FROM CERTAIN LIABIL-
ITY.— 
‘‘(i) LIABILITY FOR MEDICARE SET- 
ASIDE PAYMENT GREATER THAN PAYMENT 
UNDER WORKERS’ COMPENSATION LAW.— 
No workers’ compensation claimant, work-
ers’ compensation payer, employer, admin-
istrator of the Medicare set-aside, legal 
representative of the claimant, payer, em-
ployer, or administrator, or any other 
party related to the claimant, payer, em-
ployer, 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’ com-
pensation fee schedule (or in the absence 
of such schedule, the medical reimburse-
ment rate) under the compensation law or 
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plan of the jurisdiction where the agree-
ment will be effective. 
‘‘(ii) 
LIABILITY
FOR
PROVIDER 
CHARGES
GREATER
THAN
PAYMENT 
UNDER WORKERS’ COMPENSATION AGREE-
MENT.—With respect to a workers’ com-
pensation settlement agreement, a provider 
may not bill (or collect any amount from) 
the workers’ compensation claimant, work-
ers’ compensation payer, employer, admin-
istrator of the Medicare set-aside, legal 
representative of the claimant, payer, em-
ployer, or administrator, or any other 
party related to the claimant, payer, em-
ployer, 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 pro-
vider willfully bills (or collects an amount) 
for such an item or service in violation of 
such sentence, the Secretary may apply 
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sanctions against the provider in accord-
ance with section 1842(j)(2) in the same 
manner as such section applies with re-
spect to a physician. Paragraph (4) of sec-
tion 1842(j) shall apply under this clause 
in the same manner as such paragraph ap-
plies under such section. 
‘‘(6) TREATMENT OF STATE WORKERS’ COM-
PENSATION LAW.—For purposes of this subsection 
and subsection (p), if a workers’ compensation set-
tlement agreement is accepted, reviewed, approved, 
or otherwise finalized in accordance with the work-
ers’ compensation law of the jurisdiction in which 
such agreement will be effective, such acceptance, re-
view, approval, or other finalization shall be deemed 
conclusive as to any and all matters within the juris-
diction of the workers’ compensation law, including 
the determination of reasonableness of the settle-
ment value; any allocations of settlement funds; the 
projection of future indemnity or medical benefits 
that may be payable under the State workers’ com-
pensation law; and, 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). 
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A determination made by applicable authority for a 
jurisdiction that a workers’ compensation settlement 
agreement is in accordance with the workers’ com-
pensation law of the jurisdiction shall not be subject 
to review by the Secretary.’’. 
(c) CONFORMING AMENDMENTS.—Subsection (b) of 
such section is further amended— 
(1) in paragraph (2)(B)(ii), by striking ‘‘A pri-
mary plan’’ and inserting ‘‘Subject to subsections 
(p) and (q), a primary plan’’; 
(2) in paragraph (2)(B)(iii)— 
(A) in the first sentence, by striking ‘‘In 
order to recover payment’’ and inserting ‘‘Sub-
ject to subsection (q), in order to recover pay-
ment’’; 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 pri-
vate cause of action’’. 
(d) MODERNIZING TERMINOLOGY FOR PURPOSES OF 
MEDICARE SECONDARY PAYER PROVISIONS.—Subsection 
(b)(2)(A) of such section is amended by striking ‘‘work-
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men’s compensation law or plan’’ and inserting ‘‘workers’ 
compensation law or plan’’ each place it appears. 
SEC. 3. 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 effec-
tive 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. 
Nothing 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 settle-
ment agreement the effective date of which is before such 
date of enactment, except in the case of fraud. 
SEC. 4. EFFECTIVE DATE. 
The amendments made by this Act shall apply to a 
workers’ compensation settlement agreement with an ef-
fective date on or after the date of the enactment of this 
Act. 
Æ 
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