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Workers’ Compensation Medicare Set Aside Legislation Filed, Referred to Committee

On June 18, 2018, Senators Rob Portman (R-OH) and Bill Nelson (D-FL) introduced legislation aimed at reforming the Centers for Medicare and Medicaid Services’ (CMS) Workers’ Compensation Medicare Set-Aside (WCMSA) process.

This new bill, introduced as Senate Bill 3079, and titled the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2018, shares many similar features to prior proposals that failed to gain traction. Senate Bill 3079 once again seeks to establish a statutory framework for various aspects of the WCMSA process, including codifying certain aspects of allocating, and approving and satisfying WCMSA obligations. Currently, WCMSA review policies are governed by a series of CMS policy memoranda and its WCMSA Reference guide, and CMS has an established voluntary and optional WCMSA review and approval process.

Key proposals contained in Senate Bill 3079 include:

  • Providing specific legal definitions to key concepts related to the WCMSA process, including the term Medicare set-aside and compromise settlement;
  • Outlining circumstances where a WCMSA would satisfy obligations under the Medicare Secondary Payer (MSP) statute;
  • Allowing for proportional adjustment of the total WCMSA amount regarding compromise settlement agreements related to denied, disputed or contested claims;
  • An optional WCMSA approval process requiring CMS to provide notice of approval or disapproval within 60 days, and allowing parties to challenge CMS determinations via administrative appeal;  
  • An option for direct deposit of the WCMSA fund to Medicare upon the agreement of both parties; and
  • Greater recognition of state and jurisdictional workers’ compensation laws.

Senate Bill 3079 has been referred to the Senate Committee on Finance for further review and possible mark-up. The bill also awaits a Congressional Budget Office (CBO) score. Prior similar legislation died at the committee stage without a vote. To date, the bill has not been introduced in the House of Representatives. The current Congressional session ends in January 2019. Accordingly, if the bill is not passed by the end of the session, it will need to be re-introduced in the next Congressional term. At this point the bill is in its infancy and there likely will be mark ups if it does move through Committees and/or onto the Senate floor. We will closely monitor SB 3079’s progress and update accordingly.

Kate Riordan, J.D.

Kate Riordan, J.D., is director of Medicare Secondary Payer initiatives for Casualty Solutions at Verisk. You can contact Kate at

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