42 U.S.C. § 300mm–22 — Treatment of enrolled WTC responders for WTC-related health conditions

(a) WTC-related health condition defined: (1) In general — a "WTC-related health condition" is a condition that meets two tests. First, under (A), either (i) a physical illness, or (ii) a mental health condition, that a doctor experienced in diagnosing these conditions decides is very likely caused, worsened, or contributed to by exposure to 9/11-related toxins, hazards, or other bad conditions, using the process in paragraph (2). Second, under (B), the condition must be on the official list of WTC-related health conditions, or the person must have gotten individual certification of coverage under subsection (b)(2)(B)(iii) — for a responder directly, or for a screening-eligible or certified-eligible survivor as that process is applied through section 300mm–32(a). Special rule: if a responder only qualifies as a surviving family member of a firefighter killed on 9/11, this term does not cover a physical illness under (A)(i) for that person — only mental health conditions count. (2) Determination — to decide whether 9/11 was very likely a big factor in someone's illness, the Program looks at (A) the person's exposure to 9/11 toxins, hazards, or other bad conditions, measured with a standardized questionnaire approved by NIOSH's Director and documented by an experienced doctor; and (B) the type and timing of the person's symptoms, assessed with a standardized medical questionnaire and an exam, documented by that same kind of doctor. (3) List of health conditions for WTC responders — the official list includes: (A) aerodigestive disorders — interstitial lung diseases; chronic respiratory disorder from fumes or vapors; asthma; reactive airways dysfunction syndrome (RADS); WTC-worsened chronic obstructive pulmonary disease (COPD); chronic cough syndrome; upper airway hyperreactivity; chronic rhinosinusitis; chronic nasopharyngitis; chronic laryngitis; gastroesophageal reflux disorder (GERD); and sleep apnea made worse by any of these; (B) mental health conditions — PTSD, major depressive disorder, panic disorder, generalized anxiety disorder, unspecified anxiety disorder, unspecified depression, acute stress disorder, dysthymic disorder, adjustment disorder, and substance abuse; (C) musculoskeletal disorders, but only for the responders described in paragraph (4); and (D) any cancer or other condition later added under paragraph (5) or (6). (4) Musculoskeletal disorders: (A) for a responder who got treatment for a WTC-related musculoskeletal disorder on or before September 11, 2003, the list also includes (i) low back pain, (ii) carpal tunnel syndrome, and (iii) other musculoskeletal disorders. (B) A "WTC-related musculoskeletal disorder" is a long-lasting or repeated joint or muscle problem caused by heavy lifting or repetitive strain during 9/11 rescue or recovery work in New York City. (5) Cancer: (A) the Administrator must regularly review scientific and medical evidence — including findings from the Clinical Centers of Excellence, published in peer-reviewed journals — to decide whether cancer, or a certain type of cancer, should go on the list; the first review had to happen within 180 days of January 2, 2011. (B) If the review supports adding it, the Administrator must propose a regulation. (C) Based on the full rulemaking record, the Administrator makes a final decision and, if warranted, adds the cancer by regulation. (D) If the Administrator decides not to add a cancer, the Administrator must publish the reasons in the Federal Register — but that decision doesn't stop the cancer from being added later. (6) Addition of health conditions to list — the general process for adding a new condition: (A) the Administrator can start by asking the Advisory Committee for a recommendation, or by publishing a proposed rule directly under subparagraph (D). (B) If an interested party petitions to add a condition, the Administrator has 90 days to (i) ask the Advisory Committee for a recommendation; (ii) publish a proposed rule; (iii) publish a decision not to propose a rule, with reasons; or (iv) publish a finding that there isn't yet enough evidence to do any of those. (C) If the Administrator asks the Advisory Committee, the Committee has 90 days (or up to 180, if the Administrator allows) to respond; the Administrator then has 90 more days to publish either a proposed rule or an explained decision not to propose one. (D) Any proposed rule under this paragraph must follow the normal federal rulemaking process and give the public 30 days to comment, which the Administrator can extend for good cause (publishing the extension in the Federal Register). (E) "Interested party" includes representatives of responder organizations, national medical associations, Clinical or Data Centers, states or localities, or any other interested person. (F) Before finalizing a new condition, the Administrator must have the supporting evidence independently peer-reviewed. (G) Additional Advisory Committee check-ins: (i) by one year after December 18, 2015, and before any major new or amended policy on adding conditions, the Administrator must have the Advisory Committee review the relevant policies; (ii) by that same one-year mark, and at least every two years after, the Administrator must ask the Advisory Committee to recommend who should do the independent peer reviews under subparagraph (F). (b) Coverage of treatment for WTC-related health conditions: (1) Determination for enrolled responders based on a listed condition — (A) if a Center of Excellence physician decides a responder has a listed WTC-related health condition caused by 9/11 exposure, the physician must promptly send that finding and its medical basis to the Administrator, and from that point on, subject to (B), the Program must pay for medically necessary treatment. (B) A federal employee the Administrator designates reviews each determination; the Administrator must certify the condition unless the Administrator finds it isn't actually a listed condition, or isn't substantially tied to 9/11 exposure; the Administrator must set up an appeals process for certification decisions. (2) Determination based on medically associated conditions — (A) if a physician finds the responder has a condition not on the list but medically connected to a listed condition, the physician reports it, and (B) the Administrator decides whether to certify it, using required procedures: (i) a physician panel with relevant expertise reviews the claim and recommends; (ii) within 60 days, the Administrator decides whether the condition is medically connected; (iii) if so, the Administrator certifies coverage the same way as under paragraph (1); and (iv) there is an appeals process. (C) If certified, the Administrator may add the condition to the official list. (D) But if the Administrator already published a decision not to add a condition, no new certifications for that condition are allowed — except for people already certified before that decision was published. (3) Requirement of medical necessity — (A) treatment must be medically necessary and follow the protocols set under subsection (d); (B) the Administrator must issue regulations defining "medically necessary," including any required prior authorization, and set up an appeals process. (4) Scope of treatment covered — (A) covered treatment includes physician and provider services, diagnostic and lab tests, prescription drugs, inpatient and outpatient hospital care, and other medically necessary treatment; (B) necessary outpatient prescription drugs are provided directly through Centers of Excellence or through outside vendors the Administrator arranges; (C) the Administrator may pay for reasonable travel expenses when a responder must travel more than 250 miles to get treatment through the nationwide network, using the same rules that apply to similar federal travel-for-treatment benefits. (5) Provision of treatment pending certification — while the Administrator is still deciding whether to certify a physician's determination, the Administrator may set up a process to approve treatment (and payment) in the meantime. (c) Payment for initial health evaluation, monitoring, and treatment: (1) Medical treatment — (A) the Administrator generally must pay for treatment using the payment rates that would apply under the Federal Employees' Compensation Act; for treatment not covered by those rates, the Administrator sets a reimbursement rate by regulation, but payment can never be higher than what the Department of Labor's workers' compensation office would have paid for the same service at the time it was provided. (B) For prescription drugs, the Administrator must set up a program using one or more outside vendors chosen through competitive federal bidding, picking the lowest qualifying bidder(s); the Administrator may also make a separate arrangement for FDNY-affiliated responders if useful; and by July 1, 2011, the Comptroller General had to report on whether existing federal drug-purchasing programs could do this job more efficiently. (C) The Administrator may change payment amounts and methods — such as bundled, capitated, or pay-for-performance payments — if the data show it would improve quality or efficiency. (2) Monitoring and initial health evaluation — the Administrator sets, by regulation, the rate for reimbursing monitoring and initial health evaluation costs. (3) Determination of medical necessity — (A) the Administrator reviews reimbursement claims to confirm treatment was medically necessary and followed the approved protocols; (B) the Administrator must withhold payment for treatment that fails that check. (d) Medical treatment protocols: (1) the Data Centers must develop treatment protocols for the listed health conditions, covering enrolled responders and certified-eligible survivors; (2) the Administrator must approve those protocols.