As we approach the anniversary of the 9/11 terror attacks, we would like to provide you with an update on the World Trade Center Health Program. The James Zadroga 9/11 Health and Compensation Reauthorization Act, signed into law last December, extended the funding for the World Trade Center (WTC) Health Program through 2090. The WTC Health Program provides health monitoring and treatment benefits to first responders and workers who developed certain health conditions in the aftermath of the 9/11 terror attacks. It also requires coordination of benefits when the WTC Health Program enrollees’ injuries can be compensated under a workers’ compensation plan. In other words, when a WTC related settlement closes out future injury related care, the settlement must include funds to pay for future medical care. The set aside, included in the Section 32 settlement, must be reviewed by the WTC Health Program. Once it is approved by the WTC Health Program and funded by the settlement, the set aside funds must be used to reimburse the Program for its expenditures. Any medical expenses incurred after the set aside is properly exhausted, will be paid by the WTC Health program. Prior to the Reauthorization Act, the WTC Health Program was funded through September 30, 2016.
The WTC Health Program recently revised its policy and procedure guides. The “Policy and Procedures for Recoupment: Lump-Sum Workers’ Compensation Settlements” guide was updated on July 7, 2016, while the “Policy and Procedures for Recoupment & Coordination of Benefits: Workers’ Compensation Payment” guide was updated on August 3, 2016. The current lump sum settlement recoupment policy specifically includes the Program’s plan to recoup payment of pharmacy benefits. Safe harbor is noted for members whose set-asides were approved by the Program between October of 2013 and December of 2015. Settlements after December of 2015 however must include sufficient money to reimburse the Program for future medical and pharmacy claims given the funding of the program through 2090. This guide again confirms that the WTC Health Program reserves the right to pursue action against all payers as permitted by the Zadroga Act should the member fail to reimburse the WTC Health Program from the set-aside. Additional details may be found in the Lump Sum Workers’ Compensation Settlement guide at http://www.cdc.gov/wtc/pdfs/WTCHP-PP-Lump-Sum-20160707.pdf
The revised Coordination of Benefits guide, provides that the Clinical Centers of Excellence (CCEs) and the Nationwide Provider Network (NPN) no longer have a duty to bill the primary WC insurers. The WTC Health Program will instead be recovering payments retrospectively from NYSWC insurers though the use of the Health Insurers’ Match Program (HIMP). Although the WTC Health Program has the authority to recover under Section 1862 (b) of the Social Security Act , CMS’ policies will not apply in all cases since the purpose of the WTC Health Program differs from the Medicare program and is of a smaller scale. If however a primary payer seeks to shift costs onto the WTC Health Program, or fails to reimburse the Program, the Administrator of the Zadroga Act may file a recoupment action against a primary payer. The link to the Coordination of Benefits guide is http://www.cdc.gov/wtc/pdfs/WTCHP-PP-Work-Comp-Payment-rev20160803.pdf
The Centers for Disease Control and Prevention and the Department of Health and Human Services (HHS) also published a notice of proposed rule-making in the August 17, 2016 Federal Register, Vol.81, No. 159. Comment is being sought on the appeal process for enrollment, certification and treatment decisions as well as for the addition and removal of certain WTC-related health conditions. In addition, expanded recoupment is proposed that would require a reduction or recoupment of payment for medical and pharmaceutical treatment under this program when the WTC Health Program finds that payment has been made by a workers’ compensation plan or other public or private health insurance plan. The open period for comment will close on September 16, 2016.
In cases involving Section 32 settlement agreements in New York WC claims, the WTC Health Program reviewers are pricing drugs based on the New York fee schedule. The reviewers however are cognizant of the fact the CMS’ review of drugs is based on the lowest Average Wholesale Price for the non-repackaged version of the drug. When the settlement will include a CMS approved WCMSA, the WTC Health Program will defer to CMS’ estimate of future medical expenses where CMS has reviewed and approved a set-aside for the same conditions being treated by the WTCHP. Parties to a settlement involving a WTC related condition need to be aware of the obligations imposed under the Zadroga Act as well as the Medicare Secondary Payer Act.
We will keep you advised of further updates.