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Workers’ Compensation Board

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New York State
Workers' Compensation Board
328 State Street  Schenectady, New York 12305
Governor Andrew M. Cuomo

Subject No. 046-561

Workers' Compensation Board Requires World Trade Center
Health Program Approval for Section 32 Agreements
Involving Members of the
World Trade Center Health Program

Date: August 2, 2013

The World Trade Center Health Program (WTCHP), established by the James Zadroga 9/11 Health and Compensation Act (Zadroga Act), provides health care to those who were injured or became ill as a result of the events of 9/11, including those who receive workers' compensation benefits for the same events. The National Institute for Occupational Safety and Health (NIOSH) administers the WTCHP. The New York State Workers' Compensation Board is working closely with the WTCHP on the implementation of the program.

The WTCHP recently issued its Policy and Procedures for Recoupment & Coordination of Benefits: Workers' Compensation Payment. This subject number highlights two aspects of the WTC Health Program: Policies and Procedures as they relate to World Trade Center (WTC)-related workers' compensation claims, specifically:

  1. Billing by medical providers when the claimant has both a workers' compensation claim and is part of the WTC Health Program, and
  2. Review of Section 32 agreements involving a participant in the WTC Health Program.

The rules discussed below take effect September 1, 2013.

Health Care Billing and Recoupment

Many workers' compensation claimants who have WTC- related claims also qualify for the WTCHP. For those claimants accepted into the WTCHP, there is now improved coordination between the programs.

The WTCHP now pays providers on a fee for service basis at rates established by the Federal Employee Compensation Act (FECA), which are generally higher than New York's workers' compensation fee schedule allows. For those workers' compensation claimants who are also WTCHP members, the workers' compensation payer is the primary payer. The WTCHP is the secondary payer. Authorized providers are expected to bill the workers' compensation payer first for up to the amount allowed by the workers' compensation fee schedule, and then bill the WTCHP for up to the difference between the FECA rate and workers' compensation fee schedule amount.

Not all health services are subject to a split payment. The WTCHP uses a select group of providers, some of whom are not authorized workers' compensation providers. Those who are not authorized providers in the workers' compensation system would not bill the workers' compensation payer, but only WTCHP. Similarly, workers' compensation providers who are not part of the WTCHP's provider network would bill only the payer, and not be entitled to the higher FECA rates.

The Board is sharing data regarding established workers' compensation claims with WTCHP. If an authorized provider fails to bill the workers' compensation payer first in an established workers' compensation claim, the WTCHP may deny the bill due to error in order of payment. If WTCHP determines that the payer denied a bill inappropriately, it may seek recoupment from the payer, and impose penalties up to double damages if NIOSH finds a pattern of inappropriate denial.

Section 32 Agreements

If there is an established workers' compensation claim, the WTCHP is the secondary payer. Accordingly, it has a financial interest to protect whenever a recipient settles his or her workers' compensation claim for a lump sum and releases the workers' compensation payer of liability for future medical payments. To protect that financial interest, WTCHP is modeling its requirements related to workers' compensation settlements on the Medicare Secondary Payer program. Notably, parties to any settlement of a WTC-related workers' compensation claim are now required to protect WTCHP's interests in the settlement. To do this, the parties must obtain WTCHP approval of the settlement and set aside monies to cover future medical costs.

After September 1, 2013, the WTCHP will require that it review any settlement in which the claimant has been paid for WTCHP services. NIOSH will review each settlement to determine whether the parties have set aside an adequate amount to cover future medical services. Once an amount for medical services is established, the WTCHP participant may either pay NIOSH directly for future WTCHP services or set up a medical set aside account that pays the WTCHP for the services. The WTCHP has indicated that it may not require monies to be set aside for a subset of small-dollar settlements.

The Board will enforce the WTCHP policy by requiring all Section 32 agreements involving WTC Health Program recipients to address future payments to the WTCHP. A letter of approval from the Administrator of the WTCHP is required before the Section 32 agreement will be approved by the Board.

More information is available at the World Trade Center Health Program webpage.


Robert E. Beloten