September 11: Federal Assistance for New York Workers' Compensation Costs
Released: 2004-09-08T00:00:00

Letter

Background

The New York State Workers’ Compensation Board administers the state workers’ compensation program and processes claims for workers’ compensation benefits. These benefits go to workers who are injured at work or become ill because of workplace conditions and to survivors of workers who die because of their work-related injury or illness. New York State requires employers to provide workers’ compensation insurance— either from the State Insurance Fund (SIF), a private insurance carrier, or self-insurance—to pay cash and/or provide medical benefits for workers who qualify for coverage. Because some employers do not comply with this requirement, the state maintains a UEF to provide workers’ compensation benefits for workers associated with uninsured employers. To administer the state workers’ compensation program, the Board reviews claims to determine whether a worker is eligible to receive workers’ compensation benefits. In simplified form, the workers’ compensation claims process includes the following steps: An individual files a claim.

An insurer can challenge the claim if it questions the validity of the claim.

The Board resolves some cases without a hearing, while for others the Board holds a hearing or a series of hearings before a Workers’ Compensation Administrative Law Judge with interested parties present, such as claimants, employers, and insurance carriers.

The Board makes a final decision whether or not benefits are to be awarded to the claimant. For claims approved, insurance carriers, self- insured employers, or the UEF makes direct payments to the claimant.

Either the claimant or insurer can appeal this decision. The appeal process involves successively higher levels of appeal; the highest level is the New York State Court of Appeals.

As a result of the September 11 terrorist attacks, Congress appropriated $175 million in federal funds to assist the New York State Workers’ Compensation Board with the resulting workers’ compensation claims. Specifically, the law provided the funds in three earmarked portions: $125 million “for payment to the New York State Workers’ Compensation Review (sic) Board, for the processing of claims related to the terrorist attacks”; $25 million “for payment to the New York State Uninsured Employers Fund, for reimbursement of claims related to the terrorist attacks”; and $25 million “for payment to the New York State Uninsured Employers Fund, for reimbursement of claims related to the first response emergency services personnel who were injured, were disabled, or died due to the terrorist attacks.” The legislation provided no further explanation regarding the use of the federal funds. The law appropriating the funds gave DOL responsibility for distributing the funds. After researching various methods of transferring the funds, DOL provided the funds to the Board in the form of a grant.

Consistent with normal grant practices, before the funds were made available to the Board, DOL required the Board to complete a grant application that consisted of a statement of work, budget information, and other documents related to use of the funds. DOL approved the Board’s grant application without making any changes. DOL awarded the grant to the Board and made the funds available for 4 years. The grant agreement and the provisions of the underlying appropriation act together provide the legal framework for using the funds.

The grant agreement’s statement of work, prepared by the Board, set out three broad categories of activities to be carried out: (1) administration, (2) mitigation—efforts to help mitigate the effects of future disasters, and (3) claims reimbursements to the Uninsured Employers Fund; requested flexibility to “transfer funds amongst the three pools of money,” that is, the $125 million and the two $25 million portions; and listed the Board’s intention “to use a portion of the disaster funds to assist other entities by creating a contingency account within [the Board’s] funding structure that will allow the State to respond effectively to any unexpected needs as they arise, both in administrative and in mitigation efforts.”

The following timeline summarizes the flow of federal funds to the Board: Early January 2002: Congress appropriated $175 million to DOL for the New York State Workers’ Compensation Board.

Mid-January 2002: The Board first contacted the New York State Department of Labor (NYDOL) and DOL’s New York regional office for guidance about using the funds. NYDOL and DOL’s New York regional office referred the Board to DOL headquarters for guidance.

April 2002: DOL had determined that a federal grant agreement was the appropriate vehicle for providing funds to the Board. DOL notified the Board that the Board needed to submit a one-to-two page statement of work describing its proposed use of the funds before a grant could be awarded.

October 2002: The Board submitted its complete grant application paperwork, including the statement of work, to DOL after consulting with the New York State Division of Budget.

November 2002: DOL notified the Board of its decision to approve the grant, thereby allowing the Board to draw down funds to conduct activities consistent with the statement of work.

May 2003: The Board made its first draw down of the funds.

As is the case with federal grants in general, DOL requires the Board to regularly submit reports to DOL for review. These reports specify the amount of federal funds the Board spent during the previous quarter of the year. These reports do not require the Board to indicate specifically how it had used the funds. In addition to these quarterly reports, DOL can access reports on funds the Board had drawn down but not yet spent.

The Board Used $49 Million for Benefits and Mitigation Efforts

As of June 30, 2004, of the $175 million in federal funds to help pay expenses related to the September 11 attacks and recovery, the New York State Workers’ Compensation Board had used about $49 million. The Board had used about $44 million of the $125 million available for “processing of claims” (activities that the Board described in its statement of work as “administration” and “mitigation”) to reimburse two state entities for payment of benefits those entities had made to individuals (or their survivors) who were injured, killed, or became ill as a result of the September 11 terrorist attacks. Specifically, the Board had spent about $28 million to reimburse the New York State CVB and $16 million to reimburse the New York SIF for benefit payments they each made to September 11 victims (or their survivors). The Board also had used about $4.4 million on mitigation efforts to prepare for responding to any future terrorist attacks. The Board had not yet used any of the $25 million available to reimburse the UEF for benefits the UEF paid to workers with uninsured employers (or their survivors). However, the Board had used funds from the UEF to pay these benefits and was first trying to recoup these funds from the uninsured employers before drawing upon federal funds to reimburse for any unrecovered expense. Finally, the Board had used about $456,000 of the second $25 million to reimburse the UEF for benefits the UEF paid to volunteers (or their survivors) who provided assistance under the direction of an authorized rescue entity.

The Board Had Used a Sizable Portion of the $125 Million for Benefits Reimbursements and Mitigation Efforts

The Board paid about $28 million of the $125 million to reimburse the CVB—a state agency that compensates crime victims—for payments in connection with individuals who were injured or killed during the September 11 attacks. The state determined that the September 11 attacks were a crime that qualified for benefits under the state Crime Victim Compensation Act. According to Board officials, New York State temporarily designated the CVB as the first source of benefit payments for September 11 victims because state officials believed that this would be the most efficient way to deliver benefits. Within a month of the attacks, the Governor issued two formal decisions suspending limits on the benefit amounts payable by the CVB and identifying individuals who would be eligible for benefit payments from the CVB. According to the Board, the reimbursement agreement between the Board and the CVB was established and approved by the New York State Assembly, the New York State Senate, and the Governor. Based on this agreement, the Board reimbursed the CVB after receiving documentation describing the nature and amounts of payments that the CVB had previously made to victims. The CVB requested reimbursement from the Board for payments to victims related to loss of earnings and support, loss of essential personal property, funeral and burial expenses, and medical expenses. According to the Board, the New York State Comptroller authorized the payments, and the New York State Division of the Budget reviewed and approved these payments. The Board said it did not anticipate the need to provide additional reimbursements beyond the $28 million already provided to the CVB because individual claimants are now going directly to the Board and not to the CVB.

The Board paid about $16 million of the $125 million to reimburse the SIF for workers’ compensation benefits the SIF paid to September 11 victims employed by the state (or their survivors). The SIF—held by the New York State Department of Labor—is a fund that provides workers’ compensation insurance to public entities and private employers who elect this coverage. Specifically, the Board reimbursed the SIF for workers’ compensation benefits paid to state employees (or their survivors) who were injured or killed during the September 11 disaster. After the SIF provided documentation to the Board on benefits paid, the Board reimbursed the SIF to cover both payments already made to state employees (or their survivors) and projections of future benefit payments for these employees. These reimbursement payments were reviewed and approved by the New York State Division of the Budget. The Board did not expect to reimburse the SIF for many more September 11 claims because the deadline for filing had passed for injury and death claims. However, the Board indicated that the SIF might ask for reimbursement for a few new claims from state workers who become ill in the future, because such workers may file a claim when symptoms of a disease appear.

The Board used a significant part of the $125 million available for processing claims to reimburse the CVB and the SIF for benefit payments those entities made to victims. We are continuing to gather information about whether these reimbursements were authorized in the grant agreement’s statement of work and whether the $125 million appropriation earmarked for “the processing of claims” was available for reimbursements of benefits paid. We are pursuing this matter further and will notify the committee of our findings.

Finally, the Board had spent about $4.4 million of the $125 million on mitigation efforts to help position the Board to respond to any future disasters. These funds were used for a multiyear project to ensure the Board has the ability to maintain operations, including access to all claims data, in case the Board’s main data system fails. The Board used the funds to upgrade, purchase, and/or install computer systems; pay salaries and fringe benefits of staff working on the project; and cover travel expenses. For example, the Board paid for new tape and disk backup systems, new off-site storage contracts, and new image storage systems to ensure viability of Board data and operations. Finally, to enhance information security, the Board developed a security awareness program for all Board staff, and planned to test vulnerability of its systems. While these mitigation activities were undertaken to position the Board to recover more quickly from another disaster if one should occur, the Board acknowledged that these investments have benefited current operations as well. We are continuing to gather information on whether the $125 million earmarked for claims processing was available for these mitigation efforts.

The Board Had Not Used any of the $25 Million Available for Workers with Uninsured Employers

The Board had not used any of the $25 million federal funds available to reimburse the UEF for benefits the UEF paid to workers with uninsured employers (or their survivors). Congress appropriated these funds for the Board to reimburse the UEF—a fund maintained by the state that provides workers’ compensation benefits for workers associated with uninsured employers—for payments made to September 11 victims. However, the Board had used funds from the UEF to pay these benefits and was first trying to recoup these funds from the uninsured employers before drawing down federal funds to reimburse the UEF for any unrecovered expense.

The Board Had Used Some of the $25 Million Available for Volunteers

The Board had used about $456,000 of the $25 million available to reimburse the UEF for benefits the UEF paid to volunteers (or their survivors) who were injured or killed as a result of the September 11 attacks. Congress appropriated the $25 million for “first response emergency services personnel” and, according to Board staff, these funds were intended for individuals who had served as volunteers associated with the September 11 attacks. However, the New York workers’ compensation law in existence prior to September 2001 did not include the term “first response emergency services personnel” and did not extend coverage to volunteers. To overcome this issue, the Chair of the New York State Workers’ Compensation Board issued an official order that defined “first response emergency services personnel” as “ll persons who, serving without compensation or remuneration, and serving under the direction of an authorized rescue entity or volunteer agency, provided services to deal with the emergency situation created by the September 11, 2001 terrorist attack on the World Trade Center.” This order also identified the types of groups that the Board would consider to be an authorized rescue entity and volunteer agency (including groups associated with the New York City police and fire departments) and thus designated which volunteers were eligible for benefits that can be reimbursed from the $25 million in federal funds. Notably, volunteers are not covered by the state workers’ compensation program because they have no employer and, thus, are not considered “employees.” Therefore, compensation available to September 11 volunteers is limited to the $25 million appropriated by the Congress for reimbursement to the UEF.

While Most September 11 Claims Had Been Resolved, Many of Those from Volunteers Were Pending

As of mid-2004, 90 percent of September 11–related workers’ compensation claims had been resolved, that is, the Board had resolved all the issues that it could with the information available at that point. For the subset of claims associated with workers whose employers were uninsured, the Board had resolved 89 percent. In addition to the September 11 claims for workers’ compensation, the Board had resolved 31 percent of the volunteer claims received and 69 percent of these claims were pending.

Ninety Percent of September 11 Claims for Workers’ Compensation Had Been Resolved

As of mid-2004, most September 11–related workers’ compensation claims had been resolved, that is, the Board had resolved all the issues that it could with the information available at that point. Specifically, 90 percent of the 10,182 claims received by the Board had been resolved. Among the 9,124 resolved claims, 24 percent were death claims, while 76 percent were claims for an injury or illness. (For September 11 claims data provided by the Board, see table 1.)

For 42 percent of claims received, the Board had determined that a link had been established between the September 11 disaster and the resulting death, injury, or illness and benefits had been paid or were in the process of being paid. For an additional 10 percent of claims received, the Board had determined that a link had been established between the September 11 disaster and the resulting death, injury, or illness, but had not authorized paying benefits. According to the Board, one of the reasons that benefits had not yet been paid, even though a link had been established, was that these employees had not missed more than 7 days of work on account of their injury or illness.

Ten percent of the claims received by the Board were pending. These claims were pending for a variety of reasons, including that the claimant was waiting for his or her hearing to take place; that no causal link had been established between the death, injury, or illness and the workplace; or claimants had not pursued their case after filing.

Some September 11 claims were challenged after initial filing and some were appealed after a decision had been made. An insurance carrier and/or employer can challenge a claim after a claim is submitted if they dispute the evidence provided by the claimant. For September 11 claims, insurers/employers challenged a higher proportion of injury or illness claims than death claims. Specifically, insurers/employers challenged about 27 percent of injury or illness claims compared with about 2 percent of death claims. According to the Board, with illness claims, symptoms can develop over time, and sufficient medical evidence may not exist at the time of filing to establish a link between the illness and workplace conditions. Independent of whether a claim is challenged, either the claimant or the insurer/employer can appeal a decision after the Board has resolved a claim. Of the resolved September 11 claims, 5 percent of the death claims were appealed and 6 percent of injury or illness claims were appealed.

Of the resolved September 11 claims, 36 percent were resolved with a hearing(s) and 64 percent were resolved without a hearing(s). Of those claims with a hearing(s), 11 percent were death claims and 89 percent were injury or illness claims. The time to process claims with a hearing was as follows: 43 percent took less than 6 months, 22 percent took between 6 months and 1 year, and 35 percent took over 1 year. Of those claims without a hearing(s), 30 percent were death claims and 70 percent were injury or illness claims. The time to process claims without a hearing was as follows: 69 percent took less than 6 months, 21 percent took between 6 months and 1 year, and 10 percent took over 1 year.

Most September 11 Claims for Workers with Uninsured Employers Had Been Resolved

The majority (89 percent) of September 11 claims for workers with uninsured employers had been resolved. Most of these worker claims were resolved with a hearing(s) and took between 3 and 9 months to resolve. However, nearly a third of these claims took over a year to resolve. For those worker claims resolved without a hearing, most took less than 6 months to resolve. Eleven percent of claims from workers with uninsured employers were still pending. Common reasons that these claims were pending included that the claimant was waiting for his or her hearing to take place and that no causal link had been established between the death, injury, or illness and the workplace.

Some claims from workers with uninsured employers were challenged after initial filing and some were appealed after a decision by the Board had been made. Specifically, about 26 percent of these claims were challenged. Independent of whether a claim was challenged, 17 percent of the resolved claims were appealed after a decision had been made. For two claims for workers with uninsured employers, the claimants had received medical or cash benefits paid from state funds, and for one of these claims, the claimant was receiving continuing cash benefits. (For data on September 11 claims filed for workers with uninsured employers, see table 2.)

Most September 11 Claims for Volunteers Were Pending

While the majority of all September 11 workers’ compensation claims had been resolved, 69 percent of volunteer claims were pending. According to Board officials, a high portion of the volunteer claims were pending because (1) sufficient medical evidence had not been provided to establish the link between the September 11 volunteer activities and the death, injury, or illness and (2) claimants had not pursued their case after filing. Board officials believe that some volunteers may not have pursued their case further because they had filed a claim before developing symptoms and, therefore, had little, if any, medical evidence to provide. According to Board officials, such volunteers had filed a claim so that they could pursue benefits at a later date if symptoms were to develop. (For data on September 11 claims filed for volunteers, see table 3.)

Ninety percent of the resolved volunteer claims did not require a hearing. The majority of these claims were resolved within 3 to 9 months of filing for benefits. The time it took to resolve the seven volunteer claims that required a hearing(s) ranged from less than 3 months to more than 6 months. A few volunteer claims were challenged after initial filing: while there is no insurer involved with a volunteer claim, the Board itself challenged 2 percent of these claims. The Board challenged these claims because, for example, it did not believe that a claimant had met the criteria for being considered a September 11 volunteer or had sufficient evidence to support the claim. There have been no appeals regarding volunteer claims. For 85 volunteer claims, the claimants had received medical or cash benefits, and for 23 of these claims, the claimants were receiving continuing cash benefits.

Mr. Chairman, this concludes my prepared statement. I will be happy to respond to any questions you or other Members of the Subcommittee may have.

GAO Contacts and Staff Acknowledgments

For information regarding this testimony, please contact Robert E. Robertson, Director, or Brett S. Fallavollita, Assistant Director, Education, Workforce, and Income Security at (202) 512-7215. Individuals making contributions to this testimony include Linda L. Siegel, Kenneth J. Adams, Tonnye Conner-White, Margie Armen, and Amy Buck.

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