October 14, 2021
Rasa Fumagalli JD, MSCC, CMSP-F
As we reflect on the 20th anniversary of the devastating September 11, 2001, terrorist attacks on US soil and all the lives lost, we cannot forget the heroic efforts of all the first responders and workers involved in the clean-up of the devastation sites. Since then, many have developed a whole host of health conditions due to the exposure to toxic chemicals and the gruesome nature of the work. This month’s “Since You Asked” column will address the interplay between workers’ compensation claims, the World Trade Center (WTC) Health Program, and the Medicare Secondary Payer Act.
My client sustained a workers’ compensation injury during the clean-up of the World Trade Center Ground Zero site. Should I have a Medicare Set-Aside proposal submitted to CMS for review or is there a different process for this?
The clean-up of the September 11, 2001 devastation sites exposed many workers to dust and toxic chemicals for a prolonged period. This resulted in the development of respiratory illnesses as well as different cancer types and other conditions. No cost medical monitoring and treatment for certain medical conditions may be available through the federal World Trade Center (WTC) Health Program for qualified workers that provided rescue, recovery, debris clean up or related services after the 9/11/2001 attacks during the period between 9/11/2001 and 7/31/2002. By way of background, the WTC Health Program was developed in connection with the passage of the James Zadroga 9/11 Health and Compensation Reauthorization Act. The Act is named after a New York City police officer who developed a respiratory disease after his prolonged exposure to dust at the WTC Ground Zero Site. The WTC Health Program is administered by the National Institute for Occupational Safety and Health (NIOSH) and is funded through 2090. Details regarding eligibility and enrollment into the WTC Health Program may be found here.
Workers that are enrolled in the WTC Health Program may also have a companion workers’ compensation case. The coordination of benefits between the WTC Health Program and the workers’ compensation plan is addressed in the WTC Health Program’s “Policy and Procedures for Recoupment Lump-Sum Workers’ Compensation Settlements” (Policy) guide that was last revised on July 7, 2016. When a settlement releases an employer/insurer from responsibility for future medical expenses, the WTC Health Program will seek to recover its cost of providing health care and pharmacy benefits “either from the member or from the individual/entity designated to administer any set-aside established to pay for future medical expenses.” The WTC Health program “will follow best practices for WC recoupment as outlined by the Centers for Medicare & Medicaid Services (CMS) in its “Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide.”
The Policy guide also provides information on how to estimate the amount of money to be set aside to protect the WTC Health Program. If CMS reviewed and approved a WCMSA for expenses related to the same conditions that were certified for treatment under the WTC Health Program, the CMS determination will be given deference. The funds in the CMS reviewed WCMSA however must be used to reimburse the WTC Health Program annually for the cost of the treatment that was provided in the case. The Policy Guide also provides for the submission of proposed set-asides to the WTC Health program for review.
In your case, I would recommend that you determine whether your client qualifies for the WTC Health Program. This would then guide you in deciding how to address future injury related medical expenses in a settlement that closes out future medical care.