Proposed COMP Act Reintroduced in the United States House of Representatives

Written by: Neha Pellegrino, Esq.

Last month, on February 15, 2024, Representatives Mike Carey (R-OH) and Mike Thompson (D- CA). reintroduced the Coordination of Medicare Payments and Workers’ Compensation Act (“COMP Act”, H.R.7368) into the U.S. House of Representatives. The text of the proposed bill is available here.

The COMP Act, which proposes to legislate Workers’ Compensation Medicare Set-Asides (WCMSAs), is not a new bill, and this iteration of the COMP Act is akin to multiple previous versions of the bill.  On August 2, 2019, the COMP Act was originally introduced into the U.S. House of Representatives by Mike Thomson (D-CA) and George Holding (R-NC) as H.R. 4161. On September 24, 2020, the bill was introduced in the Senate as S.4734 by Senators Ben Cardin (D-MD) and Ron Portman (R-OH). And on March 10, 2021, Ben Cardin (D-MD) and Rob Portman (R-OH) introduced the bill as S.653 into the Senate. All previous introductions of the bill to Congress have failed over the years, and the COMP Act has never been able to secure enough votes to become law.

The proposed bill pursues to modify 42 U.S.C. 1395y(b)(2)(A)(ii) of the Medicare Secondary Payer Act ("MSP Act”). In particular, the bill addresses the procedure of WCMSAs under the Centers for Medicare & Medicaid Services (“CMS”).

The current policy for WCMSA procedure is outlined in CMS’s Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide, Version 3.9 (“Reference Guide”). Under this policy, CMS established a voluntary review and approval process with clear submission workload review thresholds for Medicare beneficiaries and reasonable expectation claimants. The COMP Act is pursuing to establish legislation for portions of CMS’s WCMSA process, including dictating appeal options and payment administration methods to name a few.

Sanderson Commentary:

Several of the projected modifications to the MSP Act proposed under the COMP Act, appear to raise more questions than provide clear solutions:

CMS Submission Review Threshold

Settling parties may choose to submit a claim to Medicare by requesting that CMS review the WCMSA. Under the Reference Guide, to be eligible for submission, the claim must meet CMS’ review threshold where 1) the injured worker is a Medicare beneficiary and the settlement amount is greater than $25,000.00, or 2) the injured worker has a reasonable expectation of Medicare enrollment within thirty (30) months and the settlement amount is greater than $250,000.00.

The COMP Act, however, is silent as to a submission review threshold. The policy behind the threshold centers around quality control. This omission of direction under the COMP Act opens the interpretation that any/all claims may be submitted for review, which threatens workload constraints for the Workers’ Compensation Review Contractor (“WCRC”).

Time Restriction for CMS Decision Appeals

Currently, parties have an unlimited amount of time to challenge a CMS Decision either through Re-Review or Amended Review. Conversely, the COMP Act mandates that parties shall have sixty (60) days after the date of the CMS Decision to challenge the determination.

It is not uncommon for claims to remain open for several years after CMS has issued a determination due to countless reasons such as changing treatment regimens, counter-higher CMS Decisions, or disputes in settlement negotiation. This time restriction will certainly have a chilling effect of holding up claim settlements due to a disputed MSA determination amount that missed the appeal cutoff.

Direct Payment of the WCMSA

The COMP Act will allow for parties to transfer a direct payment of the WCMSA to Medicare. Where WCMSA funds are slotted for future treatment, this would essentially place the federal government in the position of administering a WCMSA for a claimant. Or the government would cover the claimant’s Medicare-covered care to protect the Medicare Trust Fund, i.e. the government. While the Reference Guide provides clear direction for the administration, options for administration of payment for WCMSA funds under the COMP Act remain vague.

Whether the COMP Act will garner enough votes to become law this time around is to be determined. However, Sanderson Firm does not believe the COMP Act is needed given the established workload review thresholds and opportunities for re-review outlined in the WCMSA Reference Guide. Likewise, if the proposals within COMP Act were more akin to those in the Reference Guide, they may gain more support within the industry.

If you or your organization have any questions about this proposed legislation or would like to engage Sanderson Firm for our full suite of Medicare Secondary Payer (MSP) services, please contact us.