It has been 17 years since the devastating September 11, 2001 terrorist attacks on US soil. As we move further away from the event however, it is apparent that the list of health conditions related to the toxic chemical exposures at the devastation sites is growing. In addition to the obvious respiratory and psychological illnesses, many different cancers have been causally related to the events. Since many first responders and those involved in the subsequent clean-up had workers’ compensation claims, a review of the interplay between workers’ compensation claims, the WTC Health Program and the Medicare Secondary Payer Act is appropriate.
By way of background, the James Zadroga 9/11 Health and Compensation Act, signed into law in 2011, provided for the development of the WTC Health Program. It is named after a New York City police officer who developed a respiratory disease after weeks of involvement in the recovery efforts at the WTC Ground Zero site. The respiratory disease was found to be causally related to his exposure to dust at Ground Zero. The WTC Health Program provides first responders and those engaged in the clean-up of the devastation with no cost health monitoring and treatment for certain certified-WTC related health conditions. WTC survivors, or those within a 1.5 mile radius of the WTC site, may also be eligible for certain benefits. The James Zadroga 9/11 Health and Compensation Reauthorization Act, signed into law in December of 2015, ensures funding for the WTC Health Program through 2090. The Program is administered by the National Institute for Occupational Safety and Health (NIOSH).
Members who are accepted into the WTC Health Program must receive medical monitoring and treatment through either the Clinical Center of Excellence (CCE) locations in the New York Metropolitan Area or through the Nationwide Provider Network (NPN) for those who live outside of the area. According to the WTC Health Program website, over 8,400 new members have been added into the program between June, 2017 and June, 2018. A better understanding of the impact of the 9/11 exposures on first responders and survivors health explains the growth in membership.
The WTC Health Program recognizes that many of their participants may also be entitled to workers’ compensation benefits. In light of this, participants in the WTC Health Program are encouraged to file workers’ compensation claims. The coordination of benefits between the WTC Health Program and the workers’ compensation plan is discussed in the Policy and Procedures for Recoupment: Lump-Sum Workers’ Compensation Settlement (“Policy”) guide last revised on July 7, 2016. Section III provides that when a settlement releases an employer from future medical expenses, “the WTC Health Program will seek to recoup its cost of providing health care, including pharmacy benefits, either from the member or from the individual/entity designated to administer any set-aside established to pay future medical expenses.” The WTC Health Program looks to the practices outlined by CMS in the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide.
The Policy further explains that New York Section 32 waiver agreements that release a workers’ compensation insurer from future medical obligations, if entered into after October 1, 2013, must protect the interests of the WTC Health Program. The WTC Health Program interests can be protected by including a future medical and pharmacy treatment allocation in the lump-sum settlement agreement. Unlike a CMS approved WCMSA where the WCMSA is used to directly pay for injury related Medicare covered treatment, the funds in a WTC Health Program allocation must be used to reimburse the WTC Health Program annually for the cost of their treatment. Review of the proposed allocation by the WTC Health Program with approval of the amount and proper reimbursement to the WTC Health Program up to the agreed amount, ensures that the WTC Health Program will pay all medical expenses incurred for treatment that may exceed the amount of the allocation.
The Policy also provides procedures for estimating the amount of the future medical and pharmacy payments that protect the WTC Health Program interest. The figure should be based on an estimate of the program’s expenditures on behalf of a particular participant since 2011. In addition, in situations involving a settlement that has a CMS reviewed and approved WCMSA allocation, the WTC Health Program will defer to CMS’ estimate of future medical expenses. The Policy further sets out the manner in which a proposed allocation for the WTC Health Program should be submitted. If the settlement allocation, once approved, is improperly administered, the WTC Health Program has the right to pursue further action against all payers as permitted by the Zadroga Act. The Act permits the billing of each member/and or primary payer pursuant to 42 U.S.C Section 1395 y(b)(2)(B)(iii).
The Policy also notes that parties may have a “separate duty to protect the interests of CMS in any WC settlement.”
Given the growing enrollment of participants with certified-WTC related health conditions, parties entering into a Section 32 Waiver agreement in New York should be mindful of the need to protect the interests of the WTC Health program. Our team is available to assist in determining the best method for considering both the interests of the WTC Health Program and Medicare.