Board Bulletins and Subject Numbers

Revises Subject No. 046-1063 dated May 4, 2018

November 16, 2021

I. REIMBURSEMENT PROCEDURE

OVERVIEW

In Subject Number 046-1063, issued May 4, 2018, the Board announced changes to the process used by insurers to seek reimbursement from the Special Disability Fund for New York State Workers' Compensation Law (WCL) §§ 14(6) and 15(8) claims. The Special Funds Group handles the reimbursement process.

Effective December 1, 2021, the following forms must be used for reimbursement requests (prior versions will not be accepted). Please note that these forms must be completed in full and accurately or the form will not be considered submitted timely according to WCL § 15(8)(h)(2)(B):

• Insurer's Notification of Initial Request for Reimbursement Under WCL Section 14(6) or Section 15(8) (Form C-251N)
• Insurer's Request for Reimbursement of Indemnity Payments Under WCL Section 14(6) or Section 15(8) (Form C-251) (Excel)
• Insurer's Request for Reimbursement of Medical Payments Under WCL Section 15(8) (Form C-251.1)
• Insurer's Request for Reconsideration of Reduction Under WCL Section 14(6) or Section 15(8) (Form C-251.6)

The Special Disability Fund section of the Board's website contains revised forms, new forms, and instructions regarding form completion.

SPECIAL FUNDS GROUP REVIEW OF REQUESTS FOR REIMBURSEMENT

After a request for reimbursement (Form C-251 or Form C-251.1, as appropriate) is filed, insurers will receive a confirmation of receipt or an email from the Special Funds Group. The confirmation will be issued if the reimbursement request is complete and contains sufficient information and will include a reference number to be used for any follow up or amendment to a submission. If the request for reimbursement is incomplete or contains inaccurate information, the insurer will not be provided a confirmation receipt but will instead receive an email rejecting the submission. To avoid rejection and to ensure timely submission of reimbursement requests, the following fields must be accurate: WCB #, W#, Insurer Name, Administrator Name, and program type (e.g., 14(6) or 15(8)). Additionally, if this is an initial request filed with the Special Funds Group (not Special Funds Conservation Committee [SFCC]), Form C-251N must be filed prior to or simultaneously with the initial request for reimbursement.

All requests will undergo a review by the Special Funds Group staff. Upon completion, a response (WCB Response to Form C-251 [Form C-251R] or WCB Response to Form C-251.1 [Form C-251.1R]) will be emailed to the insurer with an explanation of any reductions. Reimbursement shall only be available for compensation payments and medical expenses that are provided for under the WCL. Thus, it remains the responsibility of the insurer to administer its claims accordingly.

Note: All amounts requested that were approved at this stage will be submitted for payment processing. Insurers should allow fourteen (14) days from receipt of the response for payment to be issued.

All reimbursement requests are subject to audit by the Office of the New York State Comptroller (OSC) prior to payment. If OSC requires a reduction, the Special Funds Group will email the insurer an amended response with an explanation of any such additional reductions.

RECONSIDERATION OF THE SPECIAL FUNDS GROUP RESPONSE

After the insurer receives the Special Funds Group response (Form C-251R or C-251.1R), it is the responsibility of the insurer to review it and identify any reductions to its reimbursement request.

An insurer disputing a reduction may submit a request for reconsideration by completing and emailing Form C-251.6 to SpecialFunds@wcb.ny.gov within sixty (60) calendar days of the date marked on Form C-251R or Form C-251.1R. Additional evidence not previously submitted which supports the request, may be attached to Form C-251.6.

Senior Special Funds Group staff not integral to the original review will complete an independent review of the reimbursement request and any additional documentation submitted with Form C-251.6. Upon completion of the review, a response (WCB Reconsideration of Form C-251 or Form C-251.1 [Form C-251.6R]) will be emailed to the insurer and is deemed the final determination by the Special Funds Group.

Note: Any payment resulting from this reconsideration is also subject to audit by the OSC. Also note, reconsideration is only an available remedy when the amount requested has been reduced by review of a submission by the Special Funds Group or OSC staff. Form C-251.6 may not be used for new requests not previously submitted on the applicable form.

ADMINISTRATIVE PROCESSING

If the insurer disputes the reconsideration made by the Special Funds Group, the insurer may request a desk review by a New York State Workers' Compensation Law Judge (WCLJ) by filing a Request for Further Action by Carrier/Employer (Form RFA-2) within thirty (30) calendar days of the date marked on the Form C-251.6R. Pending modification to Form RFA-2, insurers must use the box marked "other" and indicate that the purpose of the request is "Desk review of the Special Funds Group Decision Form C-251.6R." Failure to include this statement and a copy of Form C-251.6R may result in delay or rejection of the request.

When seeking such review, the insurer must also submit the following forms and emails with Form RFA-2. New evidence may not be submitted with the Form RFA-2, and will not be considered by the WCLJ:

• The Special Funds Group reconsideration response (Form C-251.6R) and the email from the Special Funds Group with Form C-251.6R attached.
• Form C-251.6 and the email from the insurer attaching Form C-251.6.
• Prior Special Funds Group response (Form C-251R or C-251.1R) and the email from the Special Funds Group with Form C-251R or C-251.1R attached.
• Any email receipts from the Special Funds Group acknowledging that the request for reimbursement was submitted and the dollar amount accepted by the Special Funds Group.
• Any relevant emails, including the email sent by the insurer with Form C-251 or Form C-251.1 attached.
• Form C-251 or Form C-251.1.

Note: Administrative processing is only available as a remedy after a senior Special Funds Group staff member has made a final determination in response to a reconsideration request in which the amount requested has been reduced.

Requests for reimbursement or requests for desk review via a Form RFA-2 filed prior to December 1, 2021, will be evaluated based on the May 4, 2018, version of Subject Number 046-1063, while all requests for reimbursement or request for desk review via Form RFA-2 filed on or after December 1, 2021, will be evaluated based on the revised version of Subject Number 046-1063.

If you have any questions regarding reimbursement requests from the Special Funds Group, please contact the Special Funds Group either by phone at (855) 430-3602, or by email at SpecialFunds@wcb.ny.gov.

II. ESTABLISHMENT

In accordance with the 2007 announcement of the closing of the Special Disability Fund, and pursuant to the Board's authority under Section 15(8), effective June 1, 2018, in all cases where the insurer believes it has sufficient evidence in support of a Section 15(8) finding, and where Section 15(8) has not yet been established in a decision issued by the Board, or where Section 15(8) has been established pending permanency or classification, the insurer must adhere to the following procedure:

When the claim for Section 15(8) is believed to be ripe for consideration (generally immediately prior to a hearing at which the claimant will be classified or soon after a permanency determination has been made), and not before that point, the insurer seeking establishment must submit a one-page document to the Special Funds Group at SFGmail@wcb.ny.gov which:

• Specifies, by Document Identification number, all documents present in the Board's electronic case folder, dated as filed as of July 1, 2010, that support the insurer's request for Section 15(8) establishment;
• Includes a no more than one-sentence description as to what element of Section 15(8) each Document Identification number is asserted to satisfy (e.g., "M & S statement"); and
• References all evidence that the insurer relies on in support of its claim for Section 15(8) applicability.
  • Note: There is no form for this submission. Submissions should be titled and referenced as "Request for 15(8) finding per Subject Number 046-1063."

If a decision has already been issued by the Board establishing Section 15(8) pending permanency or classification, the insurer need only identify the document or documents that support the evidentiary requirement of permanency as of July 1, 2010.

This one-page document must be submitted in any case where the insurer wishes to formalize the establishment of 15(8) liability and begin submitting 15(8) reimbursement requests. This document is required even if a prior Pre-Trial Conference Statement was completed with the Special Funds Conservation Committee.

Once review of the request for 15(8) finding per Subject Number 046-1063 has been completed, the Special Funds Group will either advise the Board of its voluntary acceptance of liability, or the Special Funds Group will request a hearing on behalf of the insurer in order to address the request. The Board will not initially schedule a hearing upon receipt of the request of the insurer to address Section 15(8) liability; rather, if the Special Funds Group does not voluntarily accept liability, it will request a hearing on behalf of the insurer.

If you have any questions regarding WCL § 15(8) establishment, please contact the Special Funds Group either by phone at (855) 430-3602, or by email at SFGmail@wcb.ny.gov.