DEPARTMENT
OF LABOR
Office
of Workers’ Compensation Programs
20
CFR Parts 1 and 30
RIN
1215-AB51
Performance
of Functions; Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act
AGENCY: Office of Workers’ Compensation Programs,
Employment Standards Administration, Labor.
ACTION: Interim final rule; request for comments.
SUMMARY: This document contains the interim final
regulations governing the administration of the Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended (EEOICPA or Act) by the
Department of Labor (Department or DOL).
Part B of the Act provides uniform lump-sum payments and medical
benefits to covered employees and, where applicable, to survivors of such employees,
of the Department of Energy (DOE), its predecessor agencies and certain of its
vendors, contractors and subcontractors.
Part B of the Act also provides smaller uniform lump-sum payments and
medical benefits to individuals found eligible by the Department of Justice
(DOJ) for benefits under section 5 of the Radiation Exposure Compensation Act (RECA)
and, where applicable, to their survivors.
Part E of the Act
provides variable lump-sum payments (based on a worker’s permanent impairment
and/or years of established wage-loss) and medical benefits for covered DOE
contractor employees and, where applicable, provides variable lump-sum payments
to survivors of such employees (based on a worker’s death due to a covered
illness and any years of established wage-loss). Part E of the Act also provides these same
payments and benefits to uranium miners, millers and ore transporters covered
by section 5 of the RECA and, where applicable, to survivors of such
employees. The
Office of Workers’ Compensation Programs (OWCP) administers the adjudication of
claims and the payment of benefits under EEOICPA, with the Department of Health
and Human Services (HHS) estimating the amounts of radiation received by
employees alleged to have sustained cancer as a result of such exposure and
establishing guidelines to be followed by OWCP in determining whether such
cancers are at least as likely as not related to employment. Both DOE and DOJ are responsible for
notifying potential claimants and for submitting evidence necessary for OWCP’s
adjudication of claims under EEOICPA.
DATES: Effective Date:
This interim final rule is effective on
Applicability
date: This interim final rule applies to all claims filed on or after
Compliance Date: Affected parties do not have to comply with
the new information collection requirements in §§ 30.102, 30.231, 30.232,
30.806, 30.905 and 30.907 until DOL publishes in the Federal Register the
control number assigned by the Office of Management and Budget (OMB) to these
information collection requirements.
Publication of the control number will notify the public that OMB has
approved the new information collection requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). It should be noted that OMB approval of the
new information collection requirements will be a revision to the currently
approved collection in OMB Control No. 1215-0197.
Comments: The Department invites comments on the
interim final rule from interested parties.
Comments on the interim final rule must be received by
ADDRESSES: You may submit comments on the interim final
rule, identified
by Regulatory Information Number (RIN) 1215-AB51, by any ONE of the following
methods:
Federal e-Rulemaking Portal: The
Internet address to submit comments on the rule is www.regulations.gov. Follow the website instructions for
submitting comments.
E-mail: Comments on the rule may be submitted by
e-mail to OWCP-DEEOIC-REG-1215-AB51@dol.gov.
You must include “RIN 1215-AB51” in the subject line of the e-mail containing
your comments.
Mail: Submit written comments to
Shelby Hallmark, Director, Office of Workers’ Compensation Programs, Employment
Standards Administration, U.S. Department of Labor, Room S-3524,
Instructions: All comments must include the RIN 1215-AB51 for
this rulemaking. Receipt of any comments, whether by mail,
Internet, or e-mail, will not be acknowledged. Because
DOL continues to experience delays in receiving postal mail in the
Comments on the interim final rule will be
available for public inspection during normal business hours at the address
listed above for mailed comments. Persons
who need assistance to review the comments will be provided with appropriate
aids such as readers or print magnifiers. Copies of this interim final rule may be
obtained in alternative formats (e.g., large print, audiotape or disk)
upon request. To schedule an appointment
to review the comments and/or to obtain the interim final rule in an
alternative format, contact OWCP at 202-693-0031 (this is not a toll-free
number).
Written comments on the new information
collection requirements described in this interim final rule should be sent to
the Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for
Employment Standards Administration,
FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of Workers’
Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S-3524,
Individuals with hearing or speech impairments
may access this telephone number via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I.
Background
The Energy Employees Occupational Illness
Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et
seq., was originally enacted on
The
initial version of EEOICPA also created a second program (known as Part D of
the Act) that required DOE to establish a system by which DOE contractor
employees (and their eligible survivors) could seek assistance from DOE in
obtaining state workers’ compensation benefits if a Physicians Panel determined
that the employee in question had sustained a covered illness as a result of
work-related exposure to a toxic substance at a DOE facility. A positive panel finding that was accepted by
DOE required DOE, to the extent permitted by law, to order its contractor not
to contest the claim for state workers’ compensation benefits. However, Congress amended EEOICPA in Subtitle
E of Title XXXI of the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004),
by abolishing Part D of the Act and creating a new Part E (codified at 42
U.S.C. 7385s through 7385s-15) that it assigned to DOL for administration. Part E establishes a new system of variable
federal payments for DOE contractor employees, uranium workers covered by
section 5 of RECA, and eligible survivors of such employees. Congress also amended several of the other
provisions contained in EEOICPA that applied to Part B and specified that DOL
was to prescribe regulations implementing the amendments to EEOICPA and
commence administration of Part E within 210 days of its enactment.
II.
Administrative Procedure Act Issues
Section 7385s-10(e) of EEOICPA clearly directs
the Secretary of Labor to “prescribe regulations necessary for the
administration of [Part E]. . .not later than 210 days after the date” the
Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 was
enacted, and further authorizes the Secretary to “prescribe interim final
regulations necessary to meet” this 210-day deadline. The Department believes that this grant of authority
to the Secretary to prescribe interim final regulations by
Therefore, the Department believes that the
“good cause” exception to APA notice and comment rulemaking applies to this
rule. Under that exception, pre-adoption
procedures are not required “when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). DOL cannot fully adjudicate claims under Part
E of EEOICPA until these regulations are promulgated. The steps necessary for the usual notice and
comment under the APA could not be completed in time for the Department of
Labor to commence administration of Part E by the deadline of May 26,
2005: approval of the notice of proposed
rulemaking by the Secretary and OMB; publication in the Federal Register;
receipt of, consideration of, and response to comments submitted by interested
parties; modification of the proposed rules, if appropriate; final approval by
the Secretary; clearance by OMB; and publication in the Federal Register. Accordingly, the Department believes that
under 5 U.S.C. 553(b)(B), good cause exists for waiver of notice and comment
rulemaking procedures because issuance of proposed rules would be impracticable
and contrary to the public interest.
While notice and comment rulemaking is
being waived, the Department is interested in comments and advice regarding
changes that should be made to these interim regulations. The Department will carefully consider all
comments on the regulations contained in this interim final rule received on or
before
Under the APA, substantive rules generally
cannot take effect until 30 days after the rule is published in the Federal
Register. However, section 553(d)(3)
of the APA states that agencies may waive this 30-day requirement for “good
cause” and establish an earlier effective date.
As explained above, the Department believes that there is “good cause”
for waiver of the APA requirement for notice and comment rulemaking because it
would be both impractical and contrary to the public interest for the
Department to fulfill that requirement.
Similarly, the Department believes that the “good cause” exception to
the 30-day effective date requirement for substantive rules in the APA applies
to this rule, because observing this requirement would be both impractical and
contrary to the public interest. As noted
above, DOL will not be able to fully adjudicate claims under Part E of EEOICPA until the regulations in this rule are
in effect. Since Congress has directed
DOL to commence administration of Part E no later than May 26, 2005 in section 7385s-10(f)(1) of
EEOICPA, the Department believes that “good cause”
exists for waiver of the usual 30-day effective date requirement for
substantive rules and for this rule to become effective immediately upon the
date of its publication in the Federal Register.
III.
Overview of Regulatory Changes
Congress, in enacting Part B of EEOICPA,
created a program to ensure an efficient, uniform, and adequate compensation
system for certain employees of DOE, its vendors, contractors, and
subcontractors, who contracted beryllium-, silica-, and radiation-related
health conditions as a result of their employment in the development of nuclear
weapons. When it amended EEOICPA to
create Part E, Congress established a second program in an effort to also ensure
an equally efficient, uniform, and adequate compensation system for DOE
contractor employees and RECA section 5 workers who contracted illnesses due to
their exposures to toxic substances as a result of employment at a DOE facility
or a RECA section 5 facility, as appropriate.
These regulations describe the processes that OWCP will use so that employees, and, when
applicable, their survivors, will receive the benefits provided by Part B and
Part E of EEOICPA in the efficient and uniform manner intended by
Congress. The following discussion
describes the many significant changes to the regulations that currently appear
as 20 CFR parts 1 and 30, but does not include any discussion of corrections of
typographical errors, or minor wording changes and clarifications that do not
affect the substance of the existing regulations.
20 CFR Part 1
This part is the same as current part 1 (§§
1.1 through 1.6), with the exception of the authority citation, and is
reprinted in full for the ease of the reader.
The authority citation has been updated to reflect that Congress
assigned responsibility for administration of the new Part E of EEOICPA
established by Public Law 108-375 to DOL.
20 CFR Part 30
Subpart A—General Provisions
This subpart is substantially the same as the
current subpart A (§§ 30.0 through 30.17).
The amended subpart adds material describing the expanded
responsibilities of DOL under EEOICPA, as well as definitions necessary for
administration of Part E of the Act.
Introduction
Section 30.0 now describes, in general
terms, the types of compensation available under both Parts B and E of EEOICPA,
the persons to whom this compensation may be paid, and the differing
eligibility requirements that apply to claimants under Part B and Part E. Section 30.2 has been updated to briefly
describe how the tasks involved in administering Part B and Part E of EEOICPA
have been assigned, both within DOL and among the Secretaries of Labor, Health and Human Services,
and Energy, and the Attorney General, following the amendments enacted on
October 28, 2004, while § 30.3 summarizes how the existing and new regulations
in this part are organized by subject area.
Definitions
Amended § 30.5 compiles the definitions for
the principal terms used in this part and is substantially unchanged from the
existing section. It includes terms
specifically defined in EEOICPA that, for the convenience of the user of this
part, are repeated in this section. The
Department seeks comments on all of the definitions provided in § 30.5,
including, in particular, those addressed in the following paragraphs.
Section 3168 of Public Law 108-375 amended
the prior statutory definition of atomic weapons employee at 42 U.S.C.
7384l(3) to add employees who did not work during the period their employer had
a contract with DOE and were instead only employed during a period of residual radioactive
contamination as determined by the National Institute for Occupational Safety
and Health (NIOSH). Thus, the regulatory
definition of this term in § 30.5(c) has been modified to reflect this amendment.
The § 30.5(p) definition of covered Part
E employee is intended to serve as a shorthand term and refers to both DOE
contractor employees (defined in section 7385s(1) of the Act) and RECA section
5 uranium workers (defined in section 7385s-5(b)(3) of the Act) who have been
determined by OWCP to have contracted covered illnesses through an exposure to
toxic substances at a DOE facility or a RECA section 5 facility, as
appropriate. In order to make it
consistent with (and also distinguish it from) § 30.5(p), the definition of covered
employee in existing § 30.5(p) has been amended to read as covered Part B
employee and has been moved to amended § 30.5(q).
In order to allow readers of this rule to
readily distinguish between the illnesses that are compensable under Parts B
and E, this section also includes regulatory definitions of covered illness
in amended § 30.5(r) and occupational illness in amended §
30.5(bb). While neither of these terms
are altered in any fashion in this rule, they are both defined in this section
to highlight the need to differentiate between an occupational illness that is
compensable under Part B of the Act, and a covered illness that is compensable
under Part E.
The Department defines Department of
Energy facility in § 30.5(v) by repeating the definition found in section
7384l(12) of the Act. As noted in
amended § 30.5(x)(2), DOL adopts the list of facilities established by the
Department of Energy that is in effect on the date of publication of this
Interim Final Rule (69 FR 51825). DOL
will periodically update this list as it deems appropriate in its sole
discretion by publishing a revised list of covered facilities in the Federal
Register. Determinations of the
Director that a facility is a Department of Energy facility is solely
for the purpose of administering the EEOICPA.
As noted above, Public Law 108-375 abolished
Part D of the Act and, at the same time, established a new Part E that
maintained the former Part D’s focus on covered illnesses of employees who were
exposed to a “toxic substance” at a DOE facility. Because section 7385s-4(c) of EEOICPA requires
DOL to use the causation standard from DOE’s former Part D regulations when it determines
if an employee has sustained a covered illness due to exposure to a toxic
substance at a DOE facility, § 30.5(ii) sets out the same definition for toxic
substance that originally appeared in DOE’s regulations for former Part D
at 10 CFR 852.2 for use under Part E. As
DOE explicitly indicated when it published its final regulations on
Information in Program Records
Existing § 30.11 describes how all records
relating to claims for benefits filed under the Act are covered by the Privacy
Act and are described in a system of records entitled DOL/ESA-49. This system of records is maintained by and
under the control of OWCP. All records
relating to a claim obtained by OWCP from the claimant or any other source are
maintained by OWCP in a case record. A
claimant may obtain, without charge, one complete copy of the records in the
case record. This will allow a claimant
to obtain a copy of any medical, employment, exposure or other evidence that
might be of use to a physician of the claimant’s choosing in providing medical
evidence to OWCP necessary to establish a claimant’s entitlement to benefits
available under the Act. Should OWCP
obtain further records after furnishing a free copy of a case record to a
claimant, the claimant can obtain one copy of those further records, without
charge, by requesting them from OWCP.
Subpart B—Filing Claims; Evidence and
Burden of Proof; Special Procedures for Certain Cancer Claims
This subpart is substantially similar to the
current subpart B, which describes the early steps in OWCP’s claims
adjudication process and includes a general description of the evidence an
employee or survivor must submit to meet his or her burden of proof under Parts
B and E of the Act. As explained in §
30.111, the claimant bears the burden of proving by a preponderance of the
evidence the existence of each and every criterion necessary to establish
eligibility under any claim category in Part B or Part E. It also explains the special procedures used
in the adjudication of claims for radiogenic cancer under Parts B and E that do
not involve members of the Special Exposure Cohort.
Filing Claims for Benefits Under Part B
and Part E of EEOICPA
Current §§ 30.100, 30.101 and 30.102
(renumbered as § 30.103 in this rule) have been revised to accommodate the
addition of Part E claims to the existing claims adjudication process. Sections 30.100 and 30.101 now include new
language that a claim for benefits under Part E, including a claim originally
filed with DOE as a claim for assistance under former Part D (which was
repealed on October 28, 2004), will not be considered to be “filed” earlier
than October 30, 2000. Also, the
language in these same two sections that employees or survivors can choose to
file a claim for benefits for only certain potentially compensable conditions
and forgo filing for a condition for which a payment has been received that
would necessitate an offset of EEOICPA benefits is new, although it describes the
current policy of OWCP. New § 30.102
describes how covered Part E employees who have previously been awarded
impairment or wage-loss benefits under Part E of the Act can file claims for additional
periods of wage-loss and/or an increased percentage of permanent impairment.
Verification of Alleged Employment
Current § 30.106, which describes DOE’s employment verification
responsibilities in the context of claims of survivors, is consolidated into §
30.105 in this rule, which now describes these responsibilities in the context
of both survivors’ and employees’ claims.
New § 30.106 sets out the current practice of OWCP and DOE of arranging for
other entities to provide OWCP with information needed to verify alleged employment,
when necessary.
Evidence and Burden of Proof
Existing § 30.111 describes how a claimant
bears the burden of proving by a preponderance of the evidence the existence of
each and every criterion necessary to establish eligibility under any
compensable claim category. OWCP collects
a variety of evidence that will assist a claimant in meeting his or her burden
of proof. In addition to employment
verification information obtained by OWCP, discussed above, in the course of
developing a case OWCP obtains from DOE and its contractors and subcontractors
and other sources a variety of medical, environmental, exposure and other
information relevant to individual employees or the facilities in general.
When a claims examiner reviews a submission
by a claimant and determines that the medical evidence is insufficient to meet
the claimant’s burden of proof, the claimant can be referred to one or more
physicians with appropriate expertise for an opinion on any issue or issues
relevant to adjudication of the claim.
When OWCP makes these referrals, the physician will be asked relevant
questions and provided with a Statement of Accepted Facts prepared by OWCP and
all relevant records from the case file.
Alternatively, and in the case of a claim by a survivor, a Statement of
Accepted Facts prepared by OWCP and all relevant records can be forwarded to
one or more physicians for their review without the necessity of an
examination. Thus, in a case where the
claimant is unable to provide sufficient medical evidence from a physician with
the necessary expertise, OWCP can, at its expense, obtain the opinion of a
physician with the appropriate expertise.
Special
Procedures for Certain Radiogenic Cancer Claims
Section 30.115, which explains the special procedures used in the early
adjudication of claims for radiogenic cancers that do not seek Part B benefits
under the Special Exposure Cohort provisions, has been modified slightly to
include new language stating that except for Part B claims previously accepted
under section 7384u of the Act, all claims seeking benefits under Part E for
radiogenic cancers will be forwarded to HHS for dose reconstruction.
Subpart C—Eligibility Criteria
This subpart is substantially the same as current subpart C (§§ 30.200 through 30.226), with a number of small changes in language to reflect the new responsibilities of DOL under EEOICPA that have resulted from the enactment of Part E. In addition to these small changes (and other changes to reflect existing administrative practices), subpart C has been amended to include the substantive changes discussed below.
Eligibility
Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E
Current § 30.210 sets forth the criteria
for eligibility for claims relating to radiogenic cancer under Part B of
EEOICPA; these criteria are quite specific and reflect Part B’s focus on a
narrowly defined list of occupational illnesses. The criteria for claims relating to
radiogenic cancer under Part E of EEOICPA differ (due to differences between
Parts B and E) from the more specific eligibility criteria for radiogenic
cancer claims under Part B and describe a particular subset of the broad range
of covered illnesses that may be compensated under Part E. However, both Part B and Part E provide
coverage for radiogenic cancer.
Therefore, current § 30.210 has been designated as subsection (a) of
amended § 30.210, and new subsection (b) sets forth the statutory eligibility
criteria for claims relating to radiogenic cancer under new Part E. Under Part E, a claim for radiogenic cancer
will be compensable if it is “at least as likely as not” that the cancer is due
to an employee’s work-related exposure to radiation; thus, using the “probability
of causation” (PoC) guidelines established by HHS, this type of claim will be
compensable if the probability of causation is 50% or higher.
Current § 30.213, which describes how OWCP
makes a finding whether a radiogenic cancer claimed under Part B was sustained
in the performance of duty under section 7384n of the Act, has been modified
slightly to more fully describe OWCP’s required use of HHS’s regulatory PoC
guidelines in its adjudication of those questions. OWCP has also decided to utilize the same HHS
PoC guidelines to determine whether exposure to radiation at a DOE facility or
a RECA section 5 facility was at least as likely as not a significant factor in
causing or contributing to a cancer for the purposes of Part E.
The radioepidemiological tables upon which
the PoC guidelines are based were originally developed in response to a 1983
congressional directive in the Orphan Drug Act (Pub. L. 97-414, 42 U.S.C. 241
note), which required HHS to “devise and publish radioepidemiological tables
that estimate the likelihood that persons who have or have had any of the radiation-developed
cancers and who have received specific doses prior to the onset of such disease
developed cancer as a result of such doses.”
Congress required determinations whether radiogenic cancers were to be considered
sustained in the performance of duty for the purposes of Part B to be based
upon those tables in section 7384n(c) of EEOICPA.
OWCP has decided to use those same HHS
regulatory PoC guidelines in its adjudication of claims for radiogenic cancer
under Part E for several reasons. First,
it recognizes that while it is not practical to legislate specific mechanisms
to determine causation for the numerous medical conditions that exposure to
tens of thousands of toxic substances at covered facilities could potentially
cause, Congress has acknowledged that use of HHS’s PoC guidelines is an
appropriate mechanism to determine whether a cancer was at least as likely as
not caused by work-related radiation exposure.
In view of the lack of a scientific basis for attributing any particular
case of cancer to any cause, the epidemiological approach taken by Congress in
Part B, and now to be utilized by OWCP for Part E, is more likely to result in
a scientifically valid and consistent determination process than merely
attempting to reach a determination based on opinions likely to contain a
substantial speculative component. Thus,
the requirement in amended § 30.213 that OWCP use HHS’s PoC guidelines to
adjudicate claims for radiogenic cancer under Part E is both appropriate and
rational.
This conclusion finds further support in
the Report of the NCI-CDC Working Group to Revise the 1985 NIH
Radioepidemiological Tables (September 2003), which found that the PoC
model was a viable method to adjudicate claims for radiation-related instances
of cancer that appropriately summarized “the likelihood that prior radiation
exposure might be causally related to cancer occurrence.” Use of the PoC guidelines for claims
under both Part B and Part E will allow
OWCP to adjudicate the entitlement of radiogenic cancers that are potentially
compensable under Part B and Part E in a uniform manner. Any process for determining coverage of
claims for radiogenic cancers that would yield inconsistent results as to
whether that cancer is covered under Parts B and E is unlikely to be understood
or accepted by claimants and other stakeholders.
The determination by OWCP to utilize the
HHS PoC guidelines will only apply to a determination whether a cancer was
contracted solely through exposure to radiation at a DOE facility or a RECA
section 5 facility, as appropriate. The
HHS PoC guidelines will not be used to determine if a cancer claimed under Part
E was contracted through exposure to radiation combined with exposure to one or
more other toxic substances because the risk models that were used by HHS to
develop the PoC guidelines for cancer at 42 CFR part 81 only address radiation
exposure. When it issued those
regulations on
Thus, when a claim for cancer under Part E
cannot be accepted based on exposure to radiation alone, because the PoC was
found to be less than 50%, the claimant will be given an opportunity to
establish that the cancer was caused by a combination of exposure to radiation
and exposure to one or more other toxic substances. OWCP will adjudicate those claims for cancer
allegedly due to exposures to radiation combined with exposure to one or more
other toxic substances using the eligibility criteria for other covered
illnesses in new §§ 30.230 through 30.232 discussed below.
Eligibility
Criteria for Other Claims Under Part E
New §
30.230 sets forth the criteria established by section 7385s-4 of EEOICPA that
OWCP uses to determine if an employee contracted a covered illness. In addition, this new section also states
that these criteria are satisfied by showing that the covered illness at issue was
accepted in a prior claim under Part B of EEOICPA or section 5 of RECA, or that
the Secretary of Energy under the former Part D accepted a Physicians Panel
positive determination regarding the existence of the covered illness prior to
the effective date of this rule. Section
30.230(d)(2) is included for the purpose of informing claimants of the kinds of
information that OWCP will consider in determining whether it is “at least as
likely as not” that exposure to a toxic substance at a Department of
Energy facility or at a RECA section 5 facility, as appropriate, was a
significant factor in aggravating, contributing to, or causing the illness. OWCP will make that determination after
carefully weighing all of the evidence supplied by the claimant or obtained by
OWCP from other sources.
Two of
the elements that a claimant must establish before OWCP can determine that an
employee contracted a covered illness are that the employee was employed at
either a DOE facility or a RECA section 5 facility, and that he or she was
exposed to a toxic substance at work.
New § 30.231 describes how to prove employment at either a DOE facility
or a RECA section 5 facility, as well as how to prove that the employee was
exposed to a toxic substance while so employed.
New §
30.232 sets forth how a claimant can prove that the employee was diagnosed with
a covered illness, or has sustained an injury, illness, impairment or disease
as a consequence of a covered illness.
This section describes the type of medical information, releases, and
work histories that must be submitted to enable OWCP to make this finding. The section also makes it clear that the
claimant may present other evidence deemed necessary by OWCP to establish the
diagnosis or prove the existence of an injury, illness, impairment or disease.
Subpart D—Adjudicatory Process
This
subpart is substantially the same as current subpart D (§§ 30.300 through
30.320), with a number of small changes in language to emphasize that this
subpart only applies when OWCP adjudicates claims for entitlement under the
Act; certain other decisions are made using other administrative processes
(such as those used to resolve medical billing disputes). In addition to these small changes, subpart D
has been amended to include new § 30.301, which implements new section 7384w in
Part B of the Act, providing that an OWCP district office claims examiner and/or
a Final Adjudication Branch (FAB) reviewer may, in the exercise of their
discretion, issue subpoenas for persons and documents when adjudicating a Part
B claim. A subpoena will be issued at
the request of a claimant only by a FAB reviewer in connection with FAB’s
adjudication process for Part B claims.
Section 30.301 also sets forth the methods for requesting issuance of
the subpoenas.
Section 30.302 is also new and contains
information about the fees and costs payable to lay and expert witnesses who
are subpoenaed by OWCP. The section
explains who is responsible for making the payment to the witness, and the
factors that will govern this determination.
New § 30.303 is intended to clarify the duties of both DOE and/or DOE
contractors to provide information or documents in response to a request from
OWCP under Part E of EEOICPA.
Hearings
and Final Decisions on Claims
Section 30.317 has been rewritten to better
describe the FAB’s discretion to return a claim to the district office for the
issuance of a new recommended decision before issuing a final decision. This new language is being added so the
regulations reflect OWCP’s current administrative practice and is not intended
to change the substance of the current regulation. Similar minor edits of a non-substantive nature
were made to § 30.318(a) and (b).
Section 30.318(c) is new and is being added to more fully explain OWCP’s
existing policy regarding objections to the PoC methodology established by HHS
regulations, and to OWCP’s application of that methodology. Section 30.319(c), regarding requests for
reconsideration of FAB decisions, has been revised to describe current
procedures for reviewing these requests, granting or denying them, and
determining the effective date of a resulting new final decision. This revision reflects current OWCP practice
with no substantive changes intended.
Subpart E—Medical and Related Benefits
This subpart is substantially the same as
current subpart E (§§ 30.400 through 30.422), since only minor modifications
were necessary in order to accommodate the addition of approved claims under
Part E of EEOICPA to OWCP’s existing processes for providing authorized medical
benefits and treatment. No changes were
made to the sections that describe the processes OWCP uses to refer employees
for directed medical examinations, which will also occur in the adjudication of
claims under Part E.
Subpart F—Survivors; Payments and
Offsets; Overpayments
The overall organization of this subpart is
substantially the same as the current subpart F (§§ 30.500 through 30.513), other
than the slight modifications that were necessary throughout the subpart to
accommodate the addition of approved claims under Part E of EEOICPA to OWCP’s existing claims payment
processes. The amended subpart also
contains regulatory language implementing OWCP’s newly granted statutory authority
to waive the required recovery of such benefits.
Survivors
The amended versions of §§ 30.500 through
30.502 now identify those persons who may be potentially eligible to receive
monetary compensation under Part B and/or Part E, based on their relationship
to a deceased
covered Part B employee or a deceased covered Part E employee. These sections also highlight the differences
in the order of precedence that OWCP must use to determine which eligible
surviving beneficiary or beneficiaries to pay under Parts B and E of EEOICPA.
Section 30.500(a)(2) contains the statutory
definition of a “child” and also includes the more restrictive statutory
criteria that an individual must satisfy to be a “covered” child under Part
E. These criteria for Part E of the Act
include the same statutory definition of a “child” used in Part B of the Act, as
well as specific age, educational or self-sufficiency criteria that must be met
as of the date of the deceased Part E employee’s death. As amended by this rule, § 30.501 still
describes the order of precedence among survivors under EEOICPA; the order of
precedence that OWCP must use under Part B now appears without substantive
change as § 30.501(a), while new § 30.501(b) describes the order of precedence
for Part E survivor claims. It should be
noted that survivors who are either grandparents, grandchildren or parents of a
deceased Part E employee are not considered eligible surviving beneficiaries of that
individual under Part E. Also, the comparable
alternative order of precedence provisions in § 30.501(a)(6) for Part B and §
30.501(b)(3) for Part E, which describe those statutorily mandated instances
when a surviving spouse must share a lump-sum payment with minor children of
the deceased employee, are not triggered under the exact same circumstances—§
30.501(a)(6) requires that the child of the deceased Part B employee be a minor
at the time benefits are paid by OWCP, while § 30.501(b)(3) only requires that
the child of the deceased Part E employee satisfy the additional criteria for a
“covered” child (as described above) as of the time of the death of the
employee, not also at the time of payment of benefits by OWCP.
Payments and Offsets
Amended §§ 30.505 through 30.507 and newly
added § 30.509 set out the rules for the payment of monetary compensation to
claimants under EEOICPA for both Part B and Part E. Although the process for paying claims under
both parts of the Act is similar, there are some differences that are reflected
in these amended sections. New §
30.505(d) describes the maximum aggregate compensation that is payable under
Part E (exclusive of medical benefits), as set forth in 42 U.S.C.
7385s-12. The statute limits the
aggregate compensation (other than medical
benefits) that OWCP may pay under Part E to all claimants for each individual
whose illness or death serves as a basis for compensation or benefits under
Part E to a total of
$250,000. This is the only reading of
the statutory language that is consistent with the statutory requirement that
the computation of both impairment benefits and wage-loss benefits under §
7385s-2 be based upon impairment or wage-loss that is “the result of any
covered illness.” This reading is also
consistent with congressional intent, as reflected in the Conference Report for
Public Law 108-375, which states that the “maximum aggregate benefit available
under [Part] E of EEOICPA is $250,000.” See
H.R. Conf. Rep. No. 108-767, at 894 (2004).
Newly added § 30.509 describes the option
that certain claimants under Part E have to choose between receiving the
benefits payable to them as a survivor, and the benefits that would have been
payable to the deceased covered Part E employee if he or she were still living
at the time of payment. This option is
contained in 42 U.S.C. 7385s-1(2)(B), and new § 30.509 notes that claimants
will only have the opportunity to make this choice in certain limited circumstances. First, a survivor of a covered Part E
employee may choose to exercise this option only if the employee died after
filing his or her Part E claim (or a claim under former Part D), but prior to
receiving any compensation under the Act.
In addition, the covered Part E employee’s death must have been solely caused
by a non-covered illness or illnesses for this option to be available to the
survivor. If both of these requirements
are met, it is likely that a survivor would choose to receive the benefits that
the deceased covered Part E employee would have received since, in that
situation, no survivor benefits would be payable for the death. Section 30.509(c) points out, however, that since impairment determinations can only
be made in conformance with subpart J of these regulations, and therefore can
only be made if the case record contains rationalized medical evidence that is
sufficiently detailed to meet the pertinent requirements of the American
Medical Association’s Guides to the Evaluation of Permanent Impairment
(AMA’s Guides), OWCP will not make an impairment determination for a
deceased covered Part E employee if the medical evidence in the case record
does not satisfy those requirements.
Overpayments
Amended §§ 30.510 through 30.512 are
substantially the same as the current versions of these sections and continue
to describe how OWCP identifies overpayments, notifies individuals that they were
overpaid, and together with new §§ 30.513 through 30.520, considers requests by
individuals to waive recovery of such overpayments under the new statutory
authority granted DOL by Congress in section 7385j-2 of EEOICPA.
New § 30.513 sets out the initial requirement
in 42 U.S.C. 7385j-2(b) that only those individuals who were “without fault” in
the creation of an overpayment of EEOICPA benefits may request waiver of
recovery of the overpayment. If the
individual satisfies this threshold requirement, new § 30.514 describes the two
statutory criteria, also found in section 7385j-2(b), that OWCP will use to
evaluate the individual’s request for waiver.
Waiver of recovery may be granted by OWCP if either: (1) recovery of the overpayment would defeat
the purpose of the EEOICPA; or (2) recovery of the overpayment would be against
equity and good conscience. These two
criteria are discussed in greater detail in new §§ 30.516 and 30.517,
respectively, which set out the general parameters that OWCP will observe when
it decides if a request for waiver satisfies either of the two statutory
criteria. New § 30.515 also notes that
OWCP will not automatically find the individual to be “without fault” in the
creation of an overpayment simply because OWCP erred in making the
payment. Any such error on OWCP’s part
cannot vitiate the statutory criteria for eligibility to any benefits payable
out of the fund established by Congress in section 7384e(d) of the Act.
To enable OWCP to consider requests for
waiver of recovery of overpayments, and to set a reasonable schedule for
repayment of the overpayment if waiver is denied, new § 30.518 notes that OWCP
may require the recipient of an overpayment of compensation to submit pertinent
information relating to his or her income, expenses and assets. This same section also notes that a failure
to submit this requested information within 30 days of the request from OWCP
will result in the denial of any request for waiver of recovery, and that no
further requests for waiver will be considered until the requested information
is provided to OWCP. New § 30.519 notes
that after considering any such evidence or argument submitted in support of a
waiver request, OWCP will issue a final decision on the matter of the
overpayment, and that the adjudicatory processes described in subpart D will
not be used to issue these particular decisions. Since a decision whether to waive recovery
of an overpayment is not a decision on
an individual’s underlying entitlement under the Act and is similar to certain other
decisions that OWCP issues (like decisions on medical billing disputes) without
using the adjudicatory processes described in subpart D, any such decision will
be issued by the OWCP district office with jurisdiction over the claim.
Existing § 30.513 has been modified and now
appears as new § 30.520 in this rule. As
the former § 30.513 did, this new section notes the statutory authority,
independent from EEOICPA, that OWCP has
to recover overpayments of EEOICPA benefits.
It also notes OWCP’s new authority, derived from 42 U.S.C. 7385j-2(a),
to recover an overpayment of EEOICPA benefits by decreasing any later benefit
payments to which the overpaid individual is entitled.
Subpart G—Special Provisions
This subpart is substantially the same as
current subpart G (§§ 30.600 through 30.620), other than the slight
modifications that were necessary in order to accommodate the addition of
claims under Part E of the Act to the existing regulations governing third
party liability, and some minor clarifications of the regulations describing the
effect of tort suits against beryllium vendors and atomic weapons employers on
claims under Part B of the Act. This
subpart also contains a fuller regulatory description of the restrictions on
representative fees in sections 7385g and 7385s-9 of EEOICPA, as well as
several new sections that describe how OWCP will “coordinate” its payment of
Part E benefits with benefits received under a state workers’ compensation
system for the same covered illness or illnesses.
Representation
While §§ 30.600, 30.601 and 30.602 remain
substantially the same as in the current rule, § 30.603 has been amended to better
describe the fees that may be collected by a representative who assists with an
EEOICPA claim. This section also
identifies DOJ as the executive branch department with the authority for
prosecuting violations of the fee-for-service limitations in the Act. Lastly, amended § 30.603 clarifies the
statement in existing § 30.603 that the fee limitations do not apply to
representative services rendered in connection with a petition filed with a
U.S. District Court or any subsequent appeal.
Coordination of Part E
Benefits with State Workers’ Compensation Benefits
Section 7385s-11 of EEOICPA requires that
Part E benefits be coordinated with state workers’ compensation benefits. This reduces the possibility of claimants
receiving duplicate payments for the same covered illness. While this provision appears to create
tension between it and section 7385 of EEOICPA (now applicable to both Parts B
and E), which excludes workers’ compensation benefits from the general offset
required by that section, OWCP is implementing the provisions of section
7385s-11 in order to effectuate all of the provisions of the recent
amendments. Section 7385s-11 provides
specific authority to coordinate Part E benefits and amounts received under
state workers’ compensation laws. OWCP
views the more specific authority in that section as taking precedence over the
general exclusion in section 7385, because failing to do so would, in effect,
negate the enactment of section 7385s-11.
New §§ 30.625, 30.626 and 30.627 thus briefly describe how OWCP may
coordinate benefits payable under Part E with certain payments the claimant receives
under a state workers’ compensation program for the same covered illness. Section 30.625 generally discusses what
“coordination of benefits” means for purposes of administering Part E. Section 30.626 discusses how OWCP will perform
this required coordination of benefits, including how it will calculate the
amount of any coordination. Section
30.627 indicates that OWCP has sole authority to waive the coordination of
benefits, in accordance with the explicit terms of section 7385s-11(b) of the
Act, and discusses circumstances that might warrant such a waiver.
Subpart H—Information for Medical
Providers
This subpart is substantially the same as
current subpart H (§§ 30.700 through 30.726), modified slightly throughout to
reflect current forms and billing terminology, and also to accommodate minor
changes to OWCP’s medical bill processing system. It also contains one change of a substantive
nature in § 30.722, which is one of the sections that describes the process
OWCP uses to exclude medical providers from participation in the EEOICPA
program. The substance of current §
30.722 now appears as subsection (b) of amended § 30.722, and a new subsection
(a) has been added to permit medical providers to request subpoenas upon a
showing of good cause in exclusion proceedings that involve medical services
provided under Part B of EEOICPA.
Subpoenas are now available under those particular circumstances,
pursuant to the authority granted by new section 7384w in Part B of EEOICPA.
Subpart I—Wage-Loss Determinations Under
Part E of EEOICPA
Subpart I is new and sets forth the procedures that OWCP uses to
determine whether a covered Part E employee sustained wage-loss as a result of
contracting a covered illness, and the amount of any such wage-loss that is
compensable under Part E of EEOICPA to covered Part E employees, and survivors
of deceased covered Part E employees.
General Provisions
Section 30.800 indicates that pursuant to section 7385s-2(a)(2) of
EEOICPA, years of wage-loss occurring up to and including the calendar year
that a covered Part E employee reaches “normal retirement age” may be
compensable under Part E. This section
further notes that in making these determinations, OWCP is required to make
findings regarding the “average annual wage” of the covered Part E employee
prior to contracting a covered illness, the percentage of such average annual
wage the covered Part E employee earned
during the alleged subsequent calendar years of wage-loss, and whether
the wage-loss during the years in question was due to the covered illness.
Certain terms used in determining compensation based on wage-loss are
defined in the statute or these regulations, and are compiled in § 30.801. Average annual wage refers to the
baseline wage against which OWCP will measure a subsequent calendar-year wage
earned by a covered Part E employee, and is defined in § 30.801(a) the same way
that the term is defined in section 7385s-2(a)(2)(A)(ii) of EEOICPA. Given the specific language used in that section of the Act, OWCP will
determine that the average annual wage of a covered Part E employee is $0 if he
or she was retired during the 12 quarters immediately preceding the quarter
during which he or she first experienced wage-loss due to exposure to a toxic
substance at a DOE facility or RECA section 5 facility, as appropriate. Section
30.801(b) defines normal retirement age as the age at which an
employee may receive an unreduced Social Security retirement benefit, which is
the same way this statutory term is described in section 7385s-2(a)(2)(A)(iii). That age varies (by date of birth) and is set by section 216(l) of the Social
Security Act, 42 U.S.C. 416(l). Because
OWCP will make its determinations under this subpart using quarterly periods,
many of the regulatory terms used in subpart I refer to quarters of years
rather than months. Section 30.801(c) thus defines quarter as the
three-month period January through March, April through June, July through
September, or October through December.
Section 30.801(d) indicates that a quarter during which the employee
was unemployed means
any quarter during which the covered Part E employee had $700 (in constant 2005
dollars) or less in wages, unless the quarter is one during which the employee
was retired. However,
claimants have the opportunity to submit probative factual evidence that the
employee was actually unemployed during a time period other than a quarter as
defined in § 30.801(c). If probative evidence
of unemployment using a time period other than a quarter is submitted, OWCP will
decide if, in the sole exercise of its discretion, it should modify its finding
regarding the average annual wage of the covered Part E employee.
Finally, § 30.801(e) defines a year of wage-loss as a calendar
year in which the employee’s earnings were less than what OWCP found to be his
or her average annual wage, after such earnings have been adjusted by the Consumer
Price Index for All Urban Consumers (CPI-U), as established by the Bureau of
Labor Statistics, to reflect their value in the year in which the employee
first experienced wage-loss due to exposure to a toxic substance at a facility
covered by the program. As an example of
how this wage adjustment will be made, assume that a covered Part E employee’s
average annual wage is found to be $50,000 (averaging his wages for the twelve
quarters from the last quarter of 1984 through the third quarter of 1987), and
that for the calendar year 1987 (the year in which he first experienced
wage-loss due to a covered illness during the fourth quarter) the CPI-U is
100. If the employee’s subsequent wages
in calendar year 1988 did not rise because medical restrictions due to his
covered illness forced him to transfer to a lower paying position that paid
$45,000 in 1987 and $50,000 in 1988, and the CPI-U for 1988 was 105, OWCP will
adjust the employee’s 1988 earnings to reflect their value in 1987 by performing
the following calculation: $50,000 (in
1988 dollars) ÷ 1.05 = $47,619 (in 1987 dollars). In that instance, OWCP would conclude that
the covered Part E employee had sustained a year of wage-loss in 1988 as
defined by § 30.801(e) because he earned less in adjusted dollars in 1988 than
his average annual wage determined by § 30.801(a), despite the fact that his
earnings in 1988 equaled his average annual wage.
Evidence of Wage-Loss
Section 30.805 describes the factual
evidence of earnings that OWCP will rely upon to determine the average annual
wage of a covered Part E employee, and the duration and extent of such
employee’s compensable wage-loss. In
some situations, OWCP may rely upon earnings information that has been reported
to the Social Security Administration, but may also rely upon additional
earnings information submitted by or requested from a claimant as described
below in connection with § 30.806.
Subsection (b) of § 30.805 also indicates that in addition to factual
evidence of a covered Part E employee’s earnings, the claimant must submit
rationalized medical evidence that is of sufficient probative value to
establish, to the satisfaction of OWCP, that the period of wage-loss at issue
is causally related to the covered Part E employee’s covered illness. These two types of evidence are necessary to
establish compensable wage-loss under the explicit language of section
7385s-2(a)(2)(A)(iii) of EEOICPA.
As noted in the preceding paragraph, § 30.806
provides claimants with the opportunity to submit factual evidence of earnings
from another source that, if it is found by OWCP to be both authentic and
acceptable as evidence that was produced in the ordinary course of business due
to the covered Part E employee’s employment, may be used to support an
assertion of a different average annual wage for the covered Part E employee,
or a greater duration or extent of wage-loss, than the evidence described in §
30.805(a) would support. If OWCP
receives this evidence from a claimant, § 30.806 indicates that OWCP will
consider it when it determines, in the exercise of its discretion, the average
annual wage and/or wage-loss of the covered Part E employee in accordance with
§§ 30.811 and 30.812.
Determinations of Average Annual Wage and
Percentages of Loss
After
it receives the factual and medical evidence described in §§ 30.805 and 30.806,
OWCP will calculate the average annual wage of a covered Part E employee
pursuant to the method described in § 30.810.
In general, that section notes that OWCP will add up the covered Part E
employee’s earnings during the 12 quarters prior to the quarter in which the
employee first experienced wage-loss due to a covered illness, excluding any
quarters during which the employee was unemployed (unless the claimant has
submitted sufficient earnings information from a different source), divide that
figure by the number of quarters during which the employee was not unemployed,
and multiply the result by four to derive his or her average annual wage.
Subsections (a) and (b) of § 30.811 indicate that OWCP will then compare
the average annual wage of a covered Part E employee with his or her earnings
in later calendar years (after adjusting those earnings in accordance with §
30.801(e)) to ascertain the calendar years during which the employee
experienced wage-loss. Subsections (c)
and (d) of § 30.811 then provide that OWCP will aggregate the number of
calendar years of wage-loss in which the employee’s adjusted earnings did not
exceed 50 percent of his or her average annual wage, and the number of calendar
years of wage-loss in which those earnings exceeded 50 percent but not more
than 75 percent of such average annual wage, and will pay the employee $15,000
or $10,000 per calendar year, respectively.
Section 30.812 explains that a covered Part E employee who has been
previously awarded compensation for wage-loss may file claims for additional calendar
years of wage-loss subsequent to any calendar years for which he or she has
already been paid compensation. Consistent
with the statute, this section provides that no compensation for wage-loss will
be payable for any calendar year of wage-loss beyond the calendar year in which
the employee reached his or her normal retirement age set forth in section
216(l) of the Social Security Act, 42 U.S.C. 416(l).
Special Rules for Certain Survivor Claims
Under Part E of EEOICPA
Section 30.815 contains the special rules that
apply to survivor claims involving wage-loss under Part E of EEOICPA. Subsection (a) indicates that for each calendar
year after the calendar year in which a covered Part E employee died, through
and including the calendar year in which the employee would have reached his or
her normal retirement age, OWCP will presume that the employee earned wages
that did not exceed 50 percent of his or her average annual wage. Subsection (b) indicates that except as
provided in § 30.815(a), OWCP will calculate the wage-loss of a deceased
covered Part E employee in accordance with the provisions of §§ 30.800 through
30.811. Finally, subsection (c) of §
30.815 describes how OWCP will determine if the eligible surviving beneficiary(s)
of a deceased covered Part E employee is entitled to receive additional
compensation in the amount of either $25,000 or $50,000 based on either ten or
20 aggregate calendar years of wage-loss experienced by the employee, as
provided by section 7385s-3(a)(2) or (3) of the Act.
Subpart J—Impairment Benefits Under Part
E
This new
subpart sets forth the procedures that OWCP uses to determine if a covered Part
E employee is entitled to compensation under Part E based on impairment that is
the result of a covered illness. It
includes provisions describing how OWCP determines the extent of an employee’s
impairment that is attributable to a covered illness, the submission of medical
evidence of impairment, what OWCP considers to be a ratable permanent impairment
in certain defined situations, and the potential eligibility of covered Part E
employees for additional impairment benefits following an award of impairment
benefits by OWCP.
General
Provisions
Section
30.900 describes the criteria, set forth in sections 7385s, 7385s-2, 7385s-4
and 7385s-5 of EEOICPA, that an employee must satisfy to qualify for an
impairment award under Part E: (1) that
he or she is a covered Part E employee found to have contracted a covered
illness through exposure to a toxic substance at a DOE facility or RECA section
5 facility, as appropriate; and (2) that he or she has been found by OWCP to
have an impairment that is the result of the accepted covered illness.
Section
30.901 describes the general process that OWCP uses, based on section 7385s-2
of the Act, to determine if a covered Part E employee’s claim for an alleged
impairment attributable to a covered illness is compensable. Subsection (a) indicates that OWCP will
consider medical reports from physicians that include opinions regarding the
extent of whole person impairment of all organs and body functions compromised
by a covered illness, and the extent of such impairment attributable to the
employee’s covered illness. Subsection
(b) provides that OWCP will determine the employee’s minimum impairment rating
in accordance with the AMA’s Guides, based on medical reports from
physicians trained to perform these impairment evaluations, and subsection (c)
of § 30.901 notes that OWCP will specify criteria that physicians must meet to
perform impairment evaluations. Those
criteria, which will include certification by a relevant medical board and
other objective factors necessary to qualify a physician to perform an
impairment evaluation under Part E, will be available to claimants, physicians
and members of the public on OWCP’s website.
Finally, subsection (d) of § 30.901 provides that if one or more percentage
points of the minimum impairment rating are found by OWCP to be the result of a
covered illness, the employee is entitled to an award based on those percentage
points. Section 30.902 describes the
formula that OWCP uses to calculate impairment awards, from section
7385s-2(a)(1) of the Act.
Medical
Evidence of Impairment
There
are two ways that OWCP can obtain an impairment evaluation of a covered Part E employee
that is sufficient to permit OWCP to adjudicate impairment benefits. Section 30.905(a) indicates that OWCP can ask
the employee to undergo an impairment evaluation performed by a physician who meets
the criteria OWCP has identified.
Alternatively, subsection (b) of § 30.905 provides that an employee can
obtain an impairment evaluation at his or her own initiative and submit it to
OWCP for consideration, but notes that OWCP will only deem it appropriate to
consider if it satisfies three criteria indicative of probative value: (1) it was performed by a physician who meets
the criteria identified by OWCP relating to the covered illness or illnesses in
question; (2) it was performed no more than one year prior to the date it was
received by OWCP; and (3) it also conforms to all other applicable requirements
set out in the regulations in this part.
OWCP
will pay for impairment evaluations, except in certain defined circumstances,
as indicated in § 30.906. That section
also notes that while OWCP will only pay for one impairment evaluation obtained
by an employee, it may direct the employee to undergo additional evaluations at
its expense if such evaluations are warranted in its discretion.
Section
30.907 describes how the district office evaluates the evidence of impairment
in the case record. Subsection (a) notes
that the employee may submit arguments and/or additional medical evidence of
impairment to challenge an impairment evaluation in the case file at any time
before the district office issues a recommended decision on the claim. However, subsection (a) also states that the
district office will not consider an additional impairment evaluation, even if
it differs from the impairment evaluation provided under §§ 30.905 or 30.906,
if the report fails to conform to the criteria listed in § 30.905(b).
Section
30.907(b) notes that in those situations where the district office obtains an
additional impairment evaluation of a covered Part E employee that differs from
the impairment evaluation that was provided under §§ 30.905 or 30.906, the district office will base the recommended
decision on the alleged impairment on the impairment evaluation it considers to
have the greatest probative value, including any obtained through a directed
examination deemed necessary under §§ 30.410 or 30.411. Section 30.908 addresses the FAB’s evaluation
of the evidence of impairment in the case record. Consistent with § 30.907(a), which describes
how the district office considers medical evidence of impairment, § 30.908(a) notes
that if a claimant submits an additional impairment evaluation to the FAB that
differs from the impairment evaluation relied upon by the district office, the
FAB will not consider the additional impairment evaluation if it fails to
satisfy the criteria listed in § 30.905(b).
Subsection (b) provides that the claimant has the burden of proving that
the additional impairment evaluation submitted is more probative than the
evaluation relied upon by the district office.
Subsection (c) of § 30.908 indicates that if a claimant submits an
additional impairment evaluation that differs from the impairment evaluation
relied upon by the district office, the FAB will review all relevant evidence
of impairment in the case record and base its final decision regarding
impairment on the evidence it considers most probative.
Ratable
Medical Impairments
The
Conference Report for Public Law 108-375 suggests that for those impairments
for which the AMA’s Guides do not provide a method to assign a numerical
percentage, the Department should devise another method to determine the amount
of an impairment award to a covered Part E employee. See H.R. Conf. Rep. No. 108-767, at
893 (2004). The language of section
7385s-2(b), however, requires that a minimum impairment rating be determined in
accordance with the AMA’s Guides.
In view of the inconsistency between that statutory language and the
Conference Report, and the absence of any accepted system for calculating
numerical impairment ratings for impairments that the AMA’s Guides do
not provide a method for calculating, OWCP is not doing so in this
rulemaking. Thus, § 30.901(a) indicates
that an impairment that cannot be assessed quantitatively as a percentage using
the AMA’s Guides will not be included in the impairment award. As an example of when this will occur, subsection
(b) of § 30.910 specifically notes that a mental impairment that does not
originate from a documented physical dysfunction of the nervous system, and thus
cannot be assigned a numerical percentage using the AMA’s Guides, will
not be included in the minimum impairment rating.
Section
30.911(a) is derived from the AMA’s Guides and indicates that only those
impairments that are considered permanent are “ratable.” Subsection (a) provides that an impairment
resulting from a covered illness will be included in the minimum impairment
rating of the covered Part E employee only if OWCP finds that it has reached
maximum medical improvement, meaning that the impairment is well-stabilized and
thus unlikely to change substantially, with or without additional medical
treatment. Subsection (b) of § 30.911,
however, indicates that notwithstanding § 30.911(a), if OWCP finds that an
employee’s covered illness is in the terminal stages based on medical evidence contained
in the case record, it will include an impairment that results from such
covered illness in the minimum impairment rating of the employee, even if the
impairment has not reached maximum medical improvement. OWCP has determined that in such situations,
it is not likely that an impairment will undergo any significant improvement,
and that the interest of awarding impairment benefits promptly to such
employees outweighs the possibility that on occasion, an employee might receive
compensation for an impairment resulting from a covered illness in the terminal
stages that unexpectedly improves significantly.
Section
30.912 notes that a covered Part E employee who has previously been awarded
impairment benefits by OWCP may file a claim for additional impairment benefits
based on an increase in the minimum impairment rating attributable to the
covered illness or illnesses from the impairment rating that formed the basis
for the previous award of such benefits by OWCP. However, this section indicates that OWCP
will only adjudicate claims for an increased rating that are filed at least two
years from the date of the last award of impairment benefits, since to do
otherwise would lead to obvious administrative inefficiencies. However, this waiting period will not apply
to a claim for additional impairment that is based on an allegation that the
employee contracted a new covered illness.
IV.
Paperwork Reduction Act
This interim final
rule contains information collection requirements subject to the Paperwork
Reduction Act of 1995 (PRA). The
information collection requirements set out in §§ 30.401, 30.404, 30.420,
30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule, which relate to
information required to be submitted by claimants and medical providers in
connection with processing of bills, and overpaid individuals in connection
with overpayments of EEOICPA benefits, were both submitted to and approved by
OMB under the PRA, and the currently approved collections in OMB Control Nos.
1215-0054 (expires June 30, 2007), 1215-0055 (expires November 30, 2006),
1215-0137 (expires March 31, 2007), 1215-0144 (expires November 30, 2006), 1215-0176
(expires January 31, 2007), 1215-0193 (expires March 31, 2007) and 1215-0194
(expires March 31, 2007) will be revised to include new respondents added by
this rule. The information collection
requirements in this first group were not affected by any of the substantive
changes that have been made in this rule.
The information collection requirements in
§§ 30.100, 30.101, 30.103, 30.111, 30.112, 30.113, 30.114, 30.206, 30.207, 30.212,
30.213, 30.214, 30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 30.505
and 30.620 of this rule were also previously submitted to and approved by OMB
under the PRA, and were assigned OMB Control No. 1215-0197 (expires August 31,
2007). The information collection
requirements in this second group were also not affected by any of the
substantive changes that have been made in this rule. However, this rule revises the currently
approved collection in OMB Control No. 1215-0197 by adding six new information
collection requirements, and also by incorporating the existing requirements in
the currently approved collection in OMB Control No. 1215-0199 (expires January
31, 2006); this revision of a currently approved collection will be submitted
to OMB for review under the PRA on the date of publication of this rule. The new information collection requirements in
this rule are in §§ 30.102, 30.231, 30.232, 30.806, 30.905 and 30.907, and
relate to information required to be submitted by either claimants or physicians
as part of the EEOICPA claims adjudication process. While the information collection requirements
in § 30.106 relating to information to be submitted by current and former DOE
contractors and subcontractors, atomic weapons employers, beryllium vendors and
other entities in possession of employment data for claimants are not new, they appear for the first time in
this rule and will be incorporated into OMB Control No. 1215-0197 in this
revision. The Department is proposing to
create one new form to implement one of the new collections (see section A
below). The remaining new and
incorporated collections will be implemented without any specific form, or with
a form currently in use in OMB Control No. 1215-0197 (see sections B through I
below).
A.
Claim for Additional Wage-Loss/Impairment: Form EE-10 (§ 30.102)
Summary: Covered Part E employees who have previously
been awarded benefits for wage-loss and/or impairment by OWCP may file claims
for additional wage-loss and/or impairment benefits, if they experience another
calendar year of wage-loss or an increase in their minimum impairment
rating. Claims filed using Form EE-10
must be supported by sufficient factual and/or medical evidence to establish that
the claimant is entitled to the benefits at issue, either factual evidence of
another calendar year of compensable wage-loss or medical evidence of an
increased minimum impairment rating due to a covered illness or illnesses. All claimants filing Form EE-10 are required
to swear or affirm that the information provided on that form is true, and are
obligated to inform OWCP of any subsequent changes to that information.
Need: A Form EE-10 claiming for additional
wage-loss and/or impairment benefits is necessary to initiate OWCP’s adjudication
process for these additional claims filed by covered Part E employees.
Respondents and proposed frequency of
response: It is estimated that 1,877
respondents annually will file one Form EE-10.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each Form EE-10 is estimated to take an average of five minutes per respondent
for a total annual burden of 156 hours.
B.
Alternate Employment Verification Response (§ 30.106)
Summary: Employees and/or survivors claiming benefits
under the EEOICPA must establish, among other things, an employment history
that includes at least one period of covered employment. To do so, claimants submit either a Form EE-3
listing periods of alleged covered employment, or a Form EE-4 containing basic
employment information in situations where specific employment information is
not available. If DOE is unable to
verify the alleged employment history after reviewing records in its
possession, but the alleged history identifies:
(1) a beryllium vendor or DOE contractor or subcontractor that has been
required by DOE to respond pursuant to 42 U.S.C. 7384v(c); or (2) some other
entity in possession of pertinent employment data that has voluntarily agreed
to respond, OWCP will ask the beryllium
vendor, DOE contractor or subcontractor, or other entity to review data in its
files regarding the employee and indicate if that data substantiates any
periods of alleged covered employment listed on Form EE-3 or EE-4. This requirement is currently approved in OMB
Control No. 1215-0199, and is being incorporated into this revision to an
existing collection of information.
Need: A documented history of covered employment is
one of the elements that must be met to establish entitlement to benefits under
the EEOICPA.
Respondents and proposed frequency of
response: It is estimated that 100
respondents annually will submit this collection of information a total of 20
times.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each collection of this information is estimated to take an average of 30
minutes per response for a total annual burden of 1,000 hours.
C.
Employment History: Form EE-3 (§
30.231)
Summary: Employees and/or survivors claiming benefits
under Part E of EEOICPA must establish, among other things, an employment
history that includes at least one period of covered employment. Form EE-3 has been devised to elicit the
basic factual information necessary to enable OWCP to make this particular
finding of fact. In Form EE-3, the
respondent (the employee or survivor) is asked to provide information with
respect to his or her identity and contact information, the employee’s
identity, and the employee’s complete employment history that includes dates of
employment, the name and location of employers, position titles and
descriptions of work performed, and information regarding any dosimetry badges
worn. All respondents will be required
to swear or affirm that the information provided on the Form EE-3 is true. Further, the employment history provided on
Form EE-3 will be provided to DOE for verification.
Need: Documentation of a history of covered
employment is one of the elements that must be met to establish entitlement to
benefits under Part E of EEOICPA.
Respondents and proposed frequency of
response: It is estimated that 8,176
Part E respondents annually will file
one Form EE-3.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each Form EE-3 is estimated to take an average of 1 hour per response for a
total added annual burden of 8,176 hours.
D.
Employment History Affidavit:
Form EE-4 (§ 30.231)
Summary: As noted in section C above, employees and/or
survivors claiming benefits under Part E of EEOICPA must establish, among other
things, an employment history that includes at least one period of covered
employment. In situations where the use
of Form EE-3 may not be practicable (e.g., due to a lack of available
information), Form EE-4 may be used as an alternate method to provide OWCP with
a basic employment history by affidavit.
In Form EE-4, the respondent (someone other than the employee or
survivor) is asked to provide information as to his or her identity and
relationship to the employee, the employee’s identity, and the employee’s
employment history that includes dates of employment, name and location of
employers, descriptions of work performed, and an explanation of the basis for
the employment history provided. All
respondents will be required to swear or affirm that the factual information
provided on the Form EE-4 is true.
Further, the employment history provided on Form EE-4 will be provided
to DOE or other entities for verification.
Need: Documentation of a history of covered
employment is one of the elements that must be met to establish entitlement to
benefits under Part E of EEOICPA.
Respondents and proposed frequency of
response: It is estimated that 2,044
Part E respondents annually will file
one Form EE-4.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each Form EE-4 is estimated to take an average of 30 minutes per response for a
total added annual burden of 1,022 hours.
E.
Medical Requirements: Form EE-7
(§ 30.232(a) and (b))
Summary: Employees and/or survivors claiming benefits
under Part E of EEOICPA (except for those who have received an award under
section 5 of RECA) must establish, among other things, that the employee
sustained a covered illness. Form EE-7
has been devised to elicit the type of medical and occupational evidence
(prepared by medical providers) needed to enable OWCP to make this particular
finding of fact. Claimants may also be
required to submit additional medical and occupational evidence (prepared by
medical providers) as necessary. Form
EE-7 describes the general requirements for medical evidence submitted in
support of a claim for a covered illness under Part E of EEOICPA.
Need: Documentation of a covered illness is one of
the elements that must be met to establish entitlement to benefits under Part E
of EEOICPA.
Respondents and proposed frequency of
response: It is estimated that 8,176
Part E respondents annually will file
one response to Form EE-7.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each collection of this information is estimated to take an average of 15
minutes per response for a total added annual burden of 2,044 hours.
F.
Supplemental Medical Evidence (§ 30.232(c))
Summary: Employees and/or survivors claiming that an
injury, illness, impairment or disability was sustained as a consequence of a
covered illness under Part E must submit a narrative medical report from a
physician that shows a causal relationship between the claimed consequential
injury, illness, impairment or disability and the covered illness. A standardized form or format will not be
used to request submission of this information, which will be collected on an
as-needed basis.
Need: Medical evidence of causal relationship is
necessary to establish entitlement to benefits for a consequential injury,
illness, impairment or disability under EEOICPA.
Respondents
and proposed frequency of response:
It is estimated that 1,500 Part E
respondents annually will submit this collection of information once.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each collection of this information is estimated to take an average of 15
minutes per response for a total added annual burden of 375 hours.
G. Alternative Wage-Loss Evidence (§ 30.806)
Summary: OWCP may use wage data from the Social
Security Administration and/or other third parties to make findings regarding
the average annual wage and the nature and extent of compensable wage-loss of a
covered Part E employee. If a claimant
disagrees with the use of that data to make these findings, he or she may
voluntarily submit records that were produced in the ordinary course of
business due to the employee’s employment and try to persuade OWCP that Social
Security Administration or other wage data should not be used to make the
findings in question. A standardized
form or format will not be used to collect this information, which will vary
widely among respondents and occur only occasionally.
Need: OWCP must have alternative wage-loss evidence
of sufficient probative value before it can calculate benefits payable for
wage-loss experienced by a covered Part E employee.
Respondents and proposed frequency of
response: It is estimated that 800
respondents annually will submit this collection of information once.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each collection of this information is estimated to take an average of 30
minutes per response for a total annual burden of 400 hours.
H. Medical Evidence of Impairment (§ 30.905)
Summary: OWCP must obtain contemporaneous medical
evidence from a physician experienced in evaluating permanent impairment before
it can determine the impairment rating of a covered Part E employee. If the medical evidence that is already in
the case record does not meet these criteria when this stage in the claims
adjudication process is reached, OWCP will inform the claimant of this
deficiency and request that he submit medical evidence sufficient for it to
determine his overall impairment rating, and the number of percentage points of
his rating that are attributable to his covered illness or illnesses. Since requests for an impairment evaluation
will necessarily be illness-specific, a standardized form or format cannot be
used to request this information.
Need: An impairment evaluation that meets OWCP’s
criteria must be in the case record before OWCP can determine the number of
percentage points that are payable.
Respondents and proposed frequency of
response: It is estimated that 1,453
respondents annually will submit this collection of information once.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each collection of this information is estimated to take an average of 15
minutes per response for a total annual burden of 363 hours.
I. Additional Medical Evidence of Impairment (§
30.907)
Summary: After the district office receives an impairment
evaluation that meets its criteria for compensating covered Part E employees,
but before it issues a recommended decision on a claimant’s impairment rating,
the claimant may, on his own initiative and at his own cost, obtain additional
medical impairment evidence supporting a higher rating and submit it to the
district office for its consideration if it too meets the same criteria. A standardized form or format cannot be used
to request this particular type of information because the impairment
evaluation that it seeks to rebut will necessarily be specific to a particular
employee.
Need: Claimants may wish to submit additional
impairment evidence that shows a higher rating before OWCP determines the
number of compensable percentage points that are payable.
Respondents and proposed frequency of
response: It is estimated that 218
respondents annually will submit this collection of information once.
Estimated total annual burden: The time required to review instructions,
search existing data sources, gather the data needed, and complete and review
each collection of this information is estimated to take an average of 15
minutes per response for a total annual burden of 55 hours.
J.
Total Annual Burden and Request for Comments
Total public burden: The information collection requirements being
either added to or incorporated into OMB Control No. 1215-0197 (described above
in sections A through I) have a total public burden hour estimate of 13,591. Using the latest National average hourly
earnings $15.95 (from the Bureau of Labor Statistics), the total added annual
public cost for these information collection requirements is estimated to be $216,776. There are no recordkeeping or collection
costs associated with Form EE-10.
Because the information requested by the collections described in
sections B through I is kept as a usual and customary business practice, there
is no additional recordkeeping or collection cost associated with those
collections. The only operation and
maintenance cost will be for postage and mailing. An estimated 50% of the EE-10 forms will
involve postage and mailing costs; the remainder will be received directly by
DOL personnel or contractors. The EE-3
form always accompanies the initial claim form filed, therefore no additional
postage or mailing is required. An
estimated annual total of 17,130 mailed responses to these information
collection requirements, at $0.37 (for postage) + $0.03 (for an envelope) per
response, would be $6,852.
Request for comments: The public is invited to provide comments on
the above-noted revision to the currently approved collection in OMB Control
No. 1215-0197 so that the Department may:
(1)
Evaluate whether the proposed collections of information are necessary
for the proper performance of the functions of the agency, including whether
the information will have practical utility;
(2)
Evaluate the accuracy of the agency’s estimates of the burdens of the collections
of information, including the validity of the methodology and assumptions used;
(3)
Enhance the quality, utility and clarity of the information to be
collected; and
(4)
Minimize the burden of the collections of information on those who are
to respond, including through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms of
information technology, e.g., permitting electronic submission of
responses.
Send comments regarding this burden
estimate, or any other aspect of this revision to the currently approved
collection in OMB Control No. 1215-0197, including suggestions for reducing
this burden, to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Attention: Desk Officer for Employment Standards
Administration,
V.
Statutory Authority
Section 7384d of EEOICPA provides general
statutory authority, which E.O. 13179 allocates to the Secretary, to prescribe
rules and regulations necessary for administration of Part B of the Act. Section 7385s-10 provides the Secretary with
the general statutory authority to administer Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide the
specific authority regarding medical treatment and care, including authority to
determine the appropriateness of charges.
The Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et
seq.), authorizes imposition of interest charges and collection of debts by
withholding funds due the debtor.
VI. Executive Order 12866
This rule is being treated as a “significant regulatory action,” within
the meaning of E.O. 12866, because it is “economically significant” as defined
by section 3(f)(1) of that Order. The
payment of the benefits provided for by EEOICPA through the program
administered pursuant to this regulatory action has an annual effect on the
economy of $100 million or more.
However, this rule does not adversely affect in a material way the economy,
a sector of the economy, productivity, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities, as defined by
section 3(f)(1) of E.O. 12866. This rule
is also a “significant regulatory action” because it meets the criteria of
section 3(f)(4) of that Order in that it raises novel or legal policy issues
arising out of the legal mandate established by EEOICPA. The Department of Labor has also concluded
that this rule constitutes a “major rule,” as that term is defined in the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804(2)), because
of the effect on the economy noted above.
Based on the factors and assumptions set forth below, DOL’s estimate of
the aggregate cost of benefits and administrative expenses of this regulatory
action implementing Part B and Part E of EEOICPA is, in millions of dollars:
------------------------------------------------------------------------------------------------------------
FY2005 FY2006
FY2007 FY2008 FY2009
------------------------------------------------------------------------------------------------------------
Admin...................................................... $90
$156 $102 $77 $63
Benefits....................................................
1,025 760 593 468
424
------------------------------------------------------------------------------------------------------------
The Department’s estimate of the benefits
to be paid pursuant to EEOICPA and of the administrative costs of providing
those benefits is based on program experience to date, data collected from
other federal agencies, assumptions about the incidence of cancer, covered
beryllium disease, chronic silicosis and other covered illnesses in the
claimant population, life expectancy tables, dose reconstruction acceptance
rates, Physician Panel acceptances under the former Part D of the Act, the
anticipated distribution of benefit
amounts, and its experience in estimating administrative and medical
costs of workers’ compensation programs.
For Part B benefits, estimates for cancer claims are based in part on
figures provided by DOE concerning the number of DOE and DOE contractor
employees (estimated by DOE to be approximately 654,000 since 1942), known
cancer incidence rates in the general population obtained from the National
Cancer Institute (the lifetime risk of being diagnosed with cancer is 45.67%
for men and 38.09% for women for all body locations[1]), and the proportion of these claims
likely to be accepted by OWCP. These
benefit estimates include anticipated medical costs of $1,500 per year for 90%
of the covered Part B employees, and $125,000 per year for the remaining 10%
because they are undergoing intensive in-hospital medical treatment.
Part B benefit estimates for beryllium exposure are based on known
incidence rates, known numbers of claimants with beryllium diseases, exposed
population estimates (approximately 45,000 beryllium vendor employees, and
several hundred thousand additional employees at DOE facilities), and medical
costs of $3,000 per year for beryllium sensitivity, $4,000 per year for mild
chronic beryllium disease, and $9,000 per year for severe chronic beryllium
disease. Benefit estimates for chronic
silicosis are based on figures obtained from DOE relating to the number of
exposed employees (approximately 15,000 miners were employed digging tunnels in
either Nevada or Alaska related to nuclear testing) and the expected incidence
of chronic silicosis, and medical costs of $4,000 per year for mild chronic
silicosis, and $9,000 per year for severe chronic silicosis. Benefit estimates for claims that require
receipt of an award pursuant to section 5 of RECA are based on figures for the
number of claims provided by DOJ, and $4,800 per year in medical costs.
Part E benefit estimates for covered Part E employees are based on the
proportion of overlap between Part B and Part E claims (95% of Part E claimants
also have filed a Part B claim), the historical dose reconstruction approval
rate (since the inception of Part B, OWCP has accepted 23% of the 5,658 non-SEC
cancer cases adjudicated to date), the historical Physician Panel approval rate
under the former Part D (35%) and the number of Special Exposure Cohort claims
approved by OWCP. The benefit amounts
(which are not uniform as is the case in Part B awards) are calculated based on
an estimated distribution of claims with varying degrees of compensable
impairment and wage-loss. Additional
Part E benefits for individuals who are considered to be eligible RECA section
5 uranium workers are computed based upon the number of such claims received to
date and the expected number of such claims in the future.
Administrative cost estimates were developed based upon OWCP’s
experience to date in administering Part B and the other workers’ compensation
programs that fall within its area of administrative responsibility, using
calculations of the number of incoming claims and forecasting the necessary
full-time equivalents and other resources that are necessary to efficiently
administer the program.
No more extensive economic impact analysis of this rule is necessary
because this regulatory action only addresses the transfer of funds from the
federal government to individuals who qualify under EEOICPA and to providers of
medical services in that program. This
regulatory action has no affect on the functioning of the economy and private
markets, on the health and safety of the general population, or on the natural
environment. In addition, because this
rule implements a statutory mandate, there are no feasible alternatives to this
regulatory action. Finally, to the
extent that policy choices have been made in interpreting statutory terms,
those choices have no significant impact on the cost of this regulatory
action. Such policy choices may affect
who will be entitled to receive benefits (such as covered Part E employees with
unratable impairments due to a covered illness), but will not have a
significant impact on the number of eligible Part B or E beneficiaries or the
level of benefits to which they are entitled.
OMB has reviewed the rule for consistency with the President’s
priorities and the principles set forth in E.O. 12866.
VII.
Small Business Regulatory Enforcement Fairness Act
As required by Congress under the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.),
the Department will report to Congress promulgation of this Interim Final Rule on
the date of its publication in the Federal Register. The report will state that DOL has concluded
that this rule is a “major rule” because it will likely result in an annual
effect on the economy of $100 million or more.
VIII.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1531 et seq.) directs agencies to assess the
effects of federal regulatory actions on state, local, and tribal governments,
and the private sector, “other than to the extent that such regulations
incorporate requirements specifically set forth in law.” For purposes of the Unfunded Mandates Reform
Act, this rule does not include any federal mandate that may result in
increased annual expenditures in excess of $100 million by state, local or
tribal governments in the aggregate, or by the private sector.
IX.
Regulatory Flexibility Act
The Department believes that this rule will
have “no significant economic impact upon a substantial number of small
entities” within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). The provisions of this rule that
apply cost-control measures to payments for medical expenses are the only ones
that could have a monetary effect on small businesses, and have been in effect
since OWCP began administration of Part B of
EEOICPA on July 31, 2001. The economic
effect of these cost-control measures will not be significant for a substantial
number of those businesses who will now participate in the program under Part E
of EEOICPA, however, because no one business bills a significant amount to OWCP
for EEOICPA-related services, and the monetary effect on bills that are
submitted, while a worthwhile savings for the Government in the aggregate, will
not be significant for any individual business affected.
The cost-control provisions are: (1) a set schedule of maximum allowable fees
for professional medical services; (2) a set schedule for payment of pharmacy
bills; and (3) a prospective payment system for hospital inpatient
services. The methodologies used for the
first two of these provisions were explained in the text of the preamble to the
earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 28948) and
2002 (67 FR 78874), which essentially adopted payment systems that are prevalent
in the industry. Their adoption for use
in connection with OWCP’s administration of Part E of the Act will therefore
result in continued efficiencies for the Government and providers. The Government will benefit because OWCP did
not develop new cost containment measures for Part E claims, but rather adopted
existing and well-recognized measures that were already in place. The providers benefit because submitting a
bill and receiving a payment will be almost the same as submitting it to
Medicare, a program with which they are already familiar and have existing
systems in place for billing—they will not have to incur unnecessary
administrative costs to learn a new process because the EEOICPA bill process for
Part E claims will be identical to the bill process that applies to Part B
claims, and will not be readily distinguishable from the Medicare billing process. Similarly, pharmacies are familiar with billing
through clearing houses and having their charges subject to limits by private
insurance carriers. By adopting private
sector uniform billing requirements and a familiar cost control methodology,
OWCP has not altered the billing environment with which pharmacies are already
familiar. The methods chosen, therefore,
represent systems familiar to the providers.
The third of these three provisions will not have an effect on a substantial
number of “small entities” under Small Business Administration (SBA) standards,
since most hospitals providing services for medical conditions covered by EEOICPA
will have annual receipts that exceed the set maximum.
The implementation of these cost-control
methods will have no significant effect on any single medical professional or
pharmacy since they are already used by Medicare, CHAMPUS, and the Departments
of Labor and Veterans Affairs, among Government
entities, and by private insurance carriers.
In actual terms, the amount by which these provider bills might be reduced
will not have a significant impact on any one small entity since these charges
are currently being processed by other payers applying similar cost-control
provisions. The costs to providers whose
charges may be reduced also will be relatively small because EEOICPA bills
simply will not represent a large share of any single provider’s total
business. Since the small universe of
potential claimants is spread across the United States and this bill processing
system will cover only those employees who have sustained an occupational
illness or a covered illness and required medical treatment on or after October
30, 2000, the number of bills submitted by any one small entity which may be
subject to these provisions is likely to be very small. Therefore, the “cost” of this rule to any one
pharmacy or medical professional will be negligible. On the other hand, OWCP will see substantial
aggregate cost savings that will benefit both OWCP (by strengthening the
integrity of the program) and the taxpayers to whom the costs of the program
are eventually charged.
The Assistant Secretary for Employment
Standards has certified to the Chief Counsel for Advocacy of the SBA that this
rule will not have a significant impact on a substantial number of small
entities. The factual basis for this
certification has been provided above.
Accordingly, no regulatory impact analysis is required.
X.
Executive Order 12988 (Civil Justice Reform)
This rule has been drafted and reviewed in
accordance with E.O. 12988 and will not unduly burden the federal court
system. While Part B of EEOICPA does not
provide any specific procedures that claimants under that Part must follow in
order to seek review of decisions on their claims, Part E specifies that
claimants under that Part have 60 days to file petitions for review of
decisions on their claims in the United States district courts, and mandates
the use of an “arbitrary and capricious” standard of review. It is reasonably likely that some EEOICPA
claimants will seek review of adverse decisions in
XI.
Executive Order 13132 (Federalism)
The Department has reviewed this rule in
accordance with E.O. 13132 regarding federalism, and has determined that it
does not have “federalism implications.”
The rule does not “have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.”
XII.
Executive Order 13045 (Protection of Children From Environmental, Health
Risks and Safety Risks)
In accordance with E.O. 13045, the
Department has evaluated the environmental health and safety effects of this
rule on children, and has determined that it will have no effect on children.
XIII. Executive Order 13211 (Actions Concerning
Regulations that Significantly Affect Energy Supply, Distribution, or Use)
In
accordance with E.O. 13211, the Department has evaluated the effects of this
rule on energy supply, distribution or use, and has determined that it is not
likely to have a significant adverse effect on them.
XIV.
Submission to Congress and the General Accountability Office
In accordance with the Congressional Review
Act provisions of the Small Business Regulatory Enforcement Fairness Act, the
Department will submit to each House of the Congress and to the Comptroller
General a report regarding the issuance of this interim final rule on the date
of its publication in the Federal Register. The report will note that this rule
constitutes a “major rule” as defined by 5 U.S.C. 804(2).
Under the Congressional Review Act, major
rules generally cannot take effect until 60 days after the rule is published in
the Federal Register. However,
section 808(2) of the Congressional Review Act states that agencies may waive
this 60-day requirement for “good cause” and establish an earlier effective
date. As explained above, the Department
believes that there is “good cause” for waiver of the APA requirement for
notice and comment rulemaking because it would be both impractical and contrary
to the public interest for the Department to fulfill that requirement. Similarly, the Department believes that the
“good cause” exception to the 60-day effective date requirement for major rules
in the Congressional Review Act applies to this rule, because observing this
requirement would be both impractical and contrary to the public interest. As noted above, DOL will not be able to fully
adjudicate claims under Part E of EEOICPA until the regulations in this rule are
in effect. Since Congress has directed
DOL to commence administration of Part E no later than May 26, 2005 in section 7385s-10(f)(1) of
EEOICPA, DOL believes that “good cause” exists for
waiver of the usual 60-day effective date requirement for all “major” rules, and
for this rule to become effective immediately upon the date of its publication
in the Federal Register.
XV.
Catalog of Federal Domestic Assistance Number
This program is not listed in the Catalog
of Federal Domestic Assistance.
List of Subjects
20 CFR Part 1
Administrative practice and procedure,
Claims, Government Employees, Labor,
Workers’ Compensation.
20 CFR Part 30
Administrative practice and procedure,
Cancer, Chemicals, Claims, Kidney Diseases, Leukemia, Lung Diseases, Miners,
Radioactive Materials, Tort claims, Underground mining, Uranium, Workers’
Compensation.
Text of the Rule
For the reasons set forth in the preamble,
20 CFR Chapter 1 is amended as follows:
SUBCHAPTER
A—ORGANIZATION AND PROCEDURES
1.
Part 1 is revised to read as follows:
PART
1—PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER
Sec.
1.1 Under what authority was the Office of
Workers’ Compensation Programs established?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP
functions found?
1.5 When was the former Bureau of Employees’
Compensation abolished?
1.6 How were many of OWCP’s current functions
administered in the past?
Authority: 5 U.S.C. 301, 8145 and 8149
(Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p.
1004, 64 Stat. 1263); 42 U.S.C. 7384d and 7385s-10; Executive Order 13179, 65
FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor’s Order No. 13-71, 36 FR 8155;
Employment Standards Order No. 2-74, 39 FR 34722.
§
1.1 Under what authority was the Office
of Workers’ Compensation Programs established?
The Assistant Secretary of Labor for Employment Standards, by authority vested in him by the
Secretary of Labor in
Secretary’s Order No. 13-71, 36 FR 8755, established in the Employment
Standards Administration an Office of Workers’ Compensation Programs (OWCP) by
Employment Standards Order No. 2-74, 39 FR 34722. The Assistant Secretary subsequently
designated as the head thereof a Director who, under the general supervision of
the Assistant Secretary, administers the programs assigned to OWCP by the
Assistant Secretary.
§
1.2 What functions are assigned to OWCP?
The Assistant Secretary of Labor for
Employment Standards has delegated authority and assigned responsibility to the
Director of OWCP for the Department of Labor’s
programs under the following statutes:
(a)
The Federal Employees’ Compensation Act, as amended and extended (5
U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains to the
Employees’ Compensation Appeals Board.
(b)
The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
(c)
The War Claims Act (50 U.S.C. App. 2003).
(d)
The Energy Employees Occupational Illness Compensation Program Act of
2000, as amended (42 U.S.C. 7384 et seq.), except activities, pursuant
to Executive Order 13179 (“Providing Compensation to America’s Nuclear Weapons
Workers”) of December 7, 2000, assigned to the Secretary of Health and Human
Services, the Secretary of Energy and the Attorney General.
(e)
The Longshore and Harbor Workers’ Compensation Act, as amended and
extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with respect to administrative
law judges in the Office of Administrative Law Judges; 33 U.S.C. 921(b) as it
pertains to the Benefits Review Board; and activities, pursuant to 33 U.S.C.
941, assigned to the Assistant Secretary of Labor for Occupational Safety and
Health.
(f)
The Black Lung Benefits Act, as amended (30 U.S.C. 901 et seq.).
§
1.3 What rules are contained in this
chapter?
The rules in this chapter are those
governing the OWCP functions under the Federal Employees’ Compensation Act, the
War Hazards Compensation Act, the War Claims Act and the Energy Employees
Occupational Illness Compensation Program Act of 2000.
§
1.4 Where are other rules concerning
OWCP functions found?
(a)
The rules of the OWCP governing its functions under the Longshore and Harbor
Workers’ Compensation Act and its extensions are set forth in subchapter A of
chapter VI of this title.
(b)
The rules of the OWCP governing its functions under the Black Lung
Benefits Act program are set forth in subchapter B of chapter VI of this title.
(c)
The rules and regulations of the Employees’ Compensation Appeals Board
are set forth in chapter IV of this title.
(d)
The rules and regulations of the Benefits Review Board are set forth in
Chapter VII of this title.
§
1.5 When was the former Bureau of
Employees’ Compensation abolished?
By Secretary of Labor’s Order issued September 23,
1974, 39 FR 34723, issued concurrently with Employment Standards Order 2-74, 39
FR 34722, the Secretary revoked the prior Secretary’s Order No. 18-67, 32 FR
12979, which had delegated authority and assigned responsibility for the
various workers’ compensation programs enumerated in § 1.2, except the Black
Lung Benefits Program and the Energy Employees Occupational Illness
Compensation Program not then in existence, to the Director of the former
Bureau of Employees’ Compensation.
§
1.6 How were many of OWCP’s current
functions administered in the past?
(a)
Administration of the Federal Employees’ Compensation Act and the
Longshore and Harbor Workers’ Compensation Act was initially vested in an
independent establishment known as the U.S. Employees’ Compensation
Commission. By Reorganization Plan No. 2
of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16,
1946), the Commission was abolished and its functions were transferred to the
Federal Security Agency to be performed by a newly created Bureau of Employees’
Compensation within such Agency. By
Reorganization Plan No. 19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page
1010, 64 Stat. 1271), said Bureau was transferred to the Department of Labor (DOL), and the authority formerly vested in the Administrator,
Federal Security Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15 FR
3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to make from time to time such provisions as he
shall deem appropriate, authorizing the performance of any of his functions by
any other officer, agency, or employee of the DOL.
(b)
In 1972, two separate organizational units were established within the
Bureau: an Office of Workmen’s
Compensation Programs (37 FR 20533) and an Office of Federal Employees’
Compensation (37 FR 22979). In 1974,
these two units were abolished and one organizational unit, the Office of
Workers’ Compensation Programs, was established in lieu of the Bureau of
Employees’ Compensation (39 FR 34722).
2.
Subchapter C consisting of Part 30 is revised to read as follows:
SUBCHAPTER
C—ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000
PART
30—CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES
OCCUPATIONAL
ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED
Subpart A—General Provisions
Introduction
Sec.
30.0 What are the provisions of the EEOICPA, in
general?
30.1 What rules govern the administration of the
EEOICPA and this chapter?
30.2 In general, how have the tasks associated
with the administration of the EEOICPA claims process been assigned?
30.3 What do these regulations contain?
Definitions
30.5 What are the definitions used in this part?
Information in Program Records
30.10 Are all OWCP records relating to claims
filed under the EEOICPA considered confidential?
30.11 Who maintains custody and control of claim
records?
30.12 What process is used by a person who wants
to obtain copies of or amend EEOICPA claim records?
Rights and Penalties
30.15 May EEOICPA benefits be assigned,
transferred or garnished?
30.16 What penalties may be imposed in connection
with a claim under the Act?
30.17 Is a beneficiary who defrauds the government
in connection with a claim for EEOICPA benefits still entitled to those
benefits?
Subpart B—Filing Claims; Evidence and
Burden of Proof; Special Procedures for Certain Cancer Claims
Filing Claims for Benefits Under EEOICPA
30.100 In general, how does an employee file an
initial claim for benefits?
30.101 In general, how is a survivor’s claim filed?
30.102 In general, how does an employee file a claim
for additional impairment or wage-loss under Part E of EEOICPA?
30.103 How does a claimant make sure that OWCP has
the evidence necessary to process the claim?
Verification of Alleged Employment
30.105 What must DOE do after an employee or
survivor files a claim?
30.106 Can OWCP request employment verification
from other sources?
Evidence and Burden of Proof
30.110 Who is entitled to compensation under the
Act?
30.111 What is the claimant’s responsibility with
respect to burden of proof, production of documents, presumptions, and
affidavits?
30.112 What kind of evidence is needed to establish
covered employment and how will that evidence be evaluated?
30.113 What are the requirements for written
medical documentation, contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish
a covered medical condition and how will that evidence be evaluated?
Special Procedures for Certain Radiogenic
Cancer Claims
30.115 For those radiogenic cancer claims that do
not seek benefits under Part B of the Act pursuant to the Special Exposure
Cohort provisions, what will OWCP do once it determines that an employee
contracted cancer?
Subpart C--Eligibility Criteria
General Provisions
30.200 What is the scope of this subpart?
Eligibility Criteria for Claims Relating
to Covered Beryllium Illness Under Part B of EEOICPA
30.205 What are the criteria for eligibility for
benefits relating to beryllium illnesses covered under Part B?
30.206 How does a claimant prove that the employee
was a “covered beryllium employee” exposed to beryllium dust, particles or
vapor in the performance of duty?
30.207 How does a claimant prove a diagnosis of a
beryllium disease covered under Part B?
Eligibility Criteria for Claims Relating
to Radiogenic Cancer Under Parts B and E of EEOICPA
30.210 What are the criteria for eligibility for
benefits relating to radiogenic cancer?
30.211 How does a claimant establish that the
employee has or had contracted cancer?
30.212 How
does a claimant establish that the employee contracted cancer after beginning
employment at a DOE facility, an atomic weapons employer facility or a RECA
section 5 facility?
30.213 How does a claimant establish that the
radiogenic cancer was at least as likely as not related to employment at the
DOE facility, the atomic weapons employer facility, or the RECA section 5
facility?
30.214 How does a claimant establish that the
employee is a member of the Special Exposure Cohort?
30.215 How does a claimant establish that the
employee has sustained an injury, illness, impairment or disease as a
consequence of a diagnosed cancer?
Eligibility Criteria for Claims Relating
to Chronic Silicosis Under Part B of EEOICPA
30.220 What are the criteria for eligibility for
benefits relating to chronic silicosis?
30.221 How does a claimant prove exposure to silica
in the performance of duty?
30.222 How does a claimant establish that the
employee has been diagnosed with chronic silicosis or has sustained a consequential
injury, illness, impairment or disease?
Eligibility Criteria for Certain Uranium
Employees Under Part B of EEOICPA
30.225 What are the criteria for eligibility for
benefits under Part B of EEOICPA for certain uranium employees?
30.226 How does a claimant establish that a covered
uranium employee has sustained a consequential injury, illness, impairment or
disease?
Eligibility Criteria for Other Claims Under
Part E of EEOICPA
30.230 What are the criteria necessary to establish
that an employee contracted a covered illness under Part E of EEOICPA?
30.231 How does a claimant prove employment-related
exposure to a toxic substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that the
employee has been diagnosed with a covered illness, or sustained an injury,
illness, impairment or disease as a consequence of a covered illness?
Subpart D—Adjudicatory Process
30.300
What process will OWCP use to decide claims for entitlement and to
provide for administrative review of those decisions?
30.301
May subpoenas be issued for witnesses and documents in connection with a
claim under Part B of EEOICPA?
30.302
Who pays the costs associated with subpoenas?
30.303
What information may OWCP request in connection with a claim under Part
E of EEOICPA?
Recommended
Decisions on Claims
30.305
How does OWCP determine entitlement to EEOICPA compensation?
30.306
What does the recommended decision contain?
30.307
To whom is the recommended decision sent?
Hearings
and Final Decisions on Claims
30.310
What must the claimant do if he or she objects to the recommended
decision or wants to request a hearing?
30.311
What happens if the claimant does not object to the recommended decision
or request a hearing within 60 days?
30.312
What will the FAB do if the claimant objects to the recommended decision
but does not request a hearing?
30.313
How is a review of the written record conducted?
30.314
How is a hearing conducted?
30.315
May a claimant postpone a hearing?
30.316
How does the FAB issue a final decision on a claim?
30.317
Can the FAB request a further response from the claimant or return a
claim to the district office?
30.318
Can the FAB consider objections to HHS’s reconstruction of a radiation
dose or to the guidelines OWCP uses to determine if a claimed cancer was at
least as likely as not related to employment?
30.319
May a claimant request reconsideration of a final decision of the FAB?
Reopening
Claims
30.320
Can a claim be reopened after the FAB has issued a final decision?
Subpart E—Medical and Related Benefits
Medical Treatment and Related Issues
30.400 What are the basic rules for obtaining
medical treatment?
30.401 What are the special rules for the services
of chiropractors?
30.402 What are the special rules for the services
of clinical psychologists?
30.403 Will OWCP pay for the services of an
attendant?
30.404 Will OWCP pay for transportation to obtain
medical treatment?
30.405 After selecting a treating physician, may an
employee choose to be treated by another physician instead?
30.406 Are there any exceptions to these procedures
for obtaining medical care?
Directed Medical Examinations
30.410 Can OWCP require an employee to be examined
by another physician?
30.411 What happens if the opinion of the physician
selected by OWCP differs from the opinion of the physician selected by the
employee?
30.412 Who pays for second opinion and referee
examinations?
Medical Reports
30.415 What are the requirements for medical
reports?
30.416 How and when should medical reports be
submitted?
30.417 What additional medical information may OWCP
require to support continuing payment of benefits?
Medical Bills
30.420 How should medical bills and reimbursement
requests be submitted?
30.421 What are the time frames for submitting
bills and reimbursement requests?
30.422 If an employee is only partially reimbursed
for a medical expense, must the provider refund the balance of the amount paid
to the employee?
Subpart F—Survivors; Payments and
Offsets; Overpayments
Survivors
30.500 What special statutory definitions apply to
survivors under EEOICPA?
30.501 What order of precedence will OWCP use to
determine which survivors are entitled to receive compensation under EEOICPA?
30.502 When is entitlement for survivors determined
for purposes of EEOICPA?
Payment of Claims and Offset for Certain
Payments
30.505 What procedures will OWCP follow before it
pays any compensation?
30.506 To whom and in what manner will OWCP pay
compensation?
30.507 What
compensation will be provided to covered Part B employees who only establish
beryllium sensitivity under Part B of EEOICPA?
30.508 What is beryllium sensitivity monitoring?
30.509 Under
what circumstances may a survivor claiming under Part E of the Act choose to
receive the benefits that would otherwise be payable to a covered Part E
employee who is deceased?
Overpayments
30.510 How does OWCP notify an individual of a
payment made on a claim?
30.511
What is an “overpayment” for purposes
of EEOICPA?
30.512
What does OWCP do when an overpayment is identified?
30.513
Under what circumstances may OWCP waive recovery of an overpayment?
30.514
If OWCP finds that the recipient of an overpayment was not at fault,
what criteria are used to decide whether to waive recovery of it?
30.515
Is a recipient responsible for an overpayment that resulted from an
error made by OWCP?
30.516
Under what circumstances would recovery of an overpayment defeat the purpose
of the Act?
30.517
Under what circumstances would recovery of an overpayment be against
equity and good conscience?
30.518
Can OWCP require the recipient of the overpayment to submit additional
financial information?
30.519
How does OWCP communicate its final decision concerning recovery of an
overpayment?
30.520
How are overpayments collected?
Subpart G—Special Provisions
Representation
30.600 May a claimant designate a representative?
30.601 Who may serve as a representative?
30.602 Who is
responsible for paying the representative’s fee?
30.603 Are there any limitations on what the
representative may charge the claimant for his or her services?
Third Party Liability
30.605 What rights does the
30.606 Under what circumstances must a recovery of
money or other property in connection with an illness for which benefits are
payable under EEOICPA be reported to OWCP?
30.607 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time) treated for
purposes of reporting the recovery?
30.608 How does the
30.609 Is a settlement or judgment received as a
result of allegations of medical malpractice in treating an illness covered by
EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to a covered Part B employee, a
covered Part E employee or an eligible surviving beneficiary as a result of an
insurance policy which the employee or eligible surviving beneficiary has
purchased a recovery that must be reported to OWCP?
30.611 If a settlement or judgment is received for
more than one medical condition, can the amount paid on a single EEOICPA claim
be attributed to different conditions for purposes of calculating the amount to
which the United States is subrogated?
Effect of Tort Suits Against Beryllium
Vendors and Atomic Weapons Employers
30.615 What type of tort suits filed against beryllium
vendors or atomic weapons employers may disqualify certain claimants from
receiving benefits under Part B of EEOICPA?
30.616 What happens if this type of tort suit was
filed prior to
30.617 What happens if this type of tort suit was
filed during the period from
30.618 What happens if this type of tort suit was
filed after
30.619 Do all the parties to this type of tort suit
have to take these actions?
30.620 How will OWCP ascertain whether a claimant
filed this type of tort suit and if he or she has been disqualified from
receiving any benefits under Part B of EEOICPA?
Coordination of Part E Benefits with State Workers’
Compensation Benefits
30.625 What
does “coordination of benefits” mean under Part E of EEOICPA?
30.626 How
will OWCP coordinate compensation payable under Part E of EEOICPA with benefits
from state workers’ compensation programs?
30.627 Under what circumstances will OWCP waive the
statutory requirement to coordinate these benefits?
Subpart H—Information for Medical
Providers
Medical Records and Bills
30.700 What kind of medical records must providers
keep?
30.701 How are medical bills to be submitted?
30.702 How should an employee prepare and submit
requests for reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
30.703 What are the time limitations on OWCP’s
payment of bills?
Medical Fee Schedule
30.705 What services are covered by the OWCP fee
schedule?
30.706 How are the maximum fees defined?
30.707 How are payments for particular services
calculated?
30.708 Does the fee schedule apply to every kind of
procedure?
30.709 How are payments for medicinal drugs
determined?
30.710 How are payments for inpatient medical
services determined?
30.711 When and how are fees reduced?
30.712 If OWCP reduces a fee, may a provider
request reconsideration of the reduction?
30.713 If OWCP reduces a fee, may a provider bill
the employee for the balance?
Exclusion of Providers
30.715 What are the grounds for excluding a
provider for payment under this part?
30.716 What will cause OWCP to automatically
exclude a physician or other provider of medical services and supplies?
30.717 When
are OWCP’s exclusion procedures initiated?
30.718 How is a provider notified of OWCP’s intent
to exclude him or her?
30.719 What requirements must the provider’s reply
and OWCP’s decision meet?
30.720 How can an excluded provider request a hearing?
30.721 How are hearings assigned and scheduled?
30.722
How are subpoenas or advisory opinions obtained?
30.723 How will the administrative law judge
conduct the hearing and issue the recommended decision?
30.724 How can a party request review by OWCP of
the administrative law judge’s recommended decision?
30.725 What are the effects of non-automatic
exclusion?
30.726 How can an excluded provider be reinstated?
Subpart I—Wage-Loss Determinations Under
Part E of EEOICPA
General Provisions
30.800 What
types of wage-loss are compensable under Part E of EEOICPA?
30.801 What special definitions does OWCP use in
connection with Part E wage-loss determinations?
Evidence of Wage-Loss
30.805 What evidence does OWCP use to determine a covered
Part E employee’s average annual wage and whether he or she experienced
compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence in
support of a different determination of average annual wage and/or wage-loss
than that found by OWCP?
Determinations of Average Annual Wage and
Percentages of Loss
30.810 How will OWCP calculate the average annual
wage of a covered Part E employee?
30.811 How will OWCP calculate the duration and
extent of a covered Part E employee’s initial period of compensable wage-loss?
30.812 May a covered Part E employee claim for
subsequent periods of compensable wage-loss?
Special Rules for Certain Survivor Claims
Under Part E of EEOICPA
30.815 Are there special rules that OWCP will use
to determine the extent of a deceased covered Part E employee’s compensable
wage-loss?
Subpart J—Impairment Benefits Under Part
E of EEOICPA
General Provisions
30.900 Who
can receive impairment benefits under Part E?
30.901 How does OWCP determine the extent of an
employee’s impairment that is due to a covered illness contracted through
exposure to a toxic substance at a DOE facility or a RECA section 5 facility,
as appropriate?
30.902 How will OWCP calculate the amount of the
award of impairment benefits that is payable under Part E?
Medical
Evidence of Impairment
30.905 How may an impairment evaluation be obtained?
30.906
Who will pay for an impairment evaluation?
30.907
Can an impairment evaluation obtained by OWCP be challenged prior to
issuance of the recommended decision?
30.908 How will the FAB evaluate new medical
evidence submitted to challenge the impairment determination in the recommended
decision?
Ratable
Medical Impairments
30.910 Will an impairment that cannot be assigned a
numerical percentage using the AMA’s Guides be included in the
impairment rating?
30.911 Does maximum medical improvement always have
to be reached for an impairment to be included in the impairment rating?
30.912 Can a covered Part E employee receive benefits
for additional impairment following an
award of such benefits by OWCP?
Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42
U.S.C. 7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 77487, 3
CFR, 2000 Comp., p. 321; Secretary of Labor’s Order No. 4-2001, 66 FR 29656.
Subpart A—General Provisions
Introduction
§
30.0 What are the provisions of the
EEOICPA, in general?
Part B of the Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42
U.S.C. 7384 et seq., provides for the payment of compensation benefits
to covered Part B employees and, where applicable, survivors of such employees,
of the United States Department of Energy (DOE), its predecessor agencies and
certain of its contractors and subcontractors.
Part B also provides for the payment of supplemental compensation benefits
to other covered Part B employees who have already been found eligible for
benefits under section 5 of the Radiation Exposure Compensation Act, as amended
(RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such persons. Part E of the Act provides for the payment of
compensation benefits to covered Part E employees and, where applicable,
survivors of such employees. The
regulations in this part describe the rules governing filing, processing, and
paying claims for benefits under both Part B and Part E of EEOICPA.
(a) Part
B of EEOICPA provides for the payment of either lump-sum monetary compensation
for the disability of a covered Part B employee due to an occupational illness
or for monitoring for beryllium sensitivity, as well as for medical and related
benefits for such illness. Part B also
provides for the payment of monetary compensation for the disability of a
covered Part B employee to specified survivors if the employee is deceased at
the time of payment.
(b)
Part E of EEOICPA provides for the payment of monetary compensation for
the established wage-loss and/or impairment of a covered Part E employee due to
a covered illness, and for medical and related benefits for such covered illness. Part E also provides for the payment of monetary
compensation for the death (and established wage-loss, where applicable) of a covered
Part E employee to specified survivors if the covered Part E employee is
deceased at the time of payment.
(c)
All types of benefits and conditions of eligibility listed in this
section are subject to the provisions of EEOICPA and this part.
§
30.1 What rules govern the
administration of the EEOICPA and this chapter?
In accordance with EEOICPA, Executive Order
13179 and Secretary’s Order No. 4-2001, the primary responsibility for
administering the Act, except for those activities assigned to the Secretary of
Health and Human Services, the Secretary of Energy and the Attorney General,
has been delegated to the Assistant Secretary of Labor for Employment
Standards. The Assistant Secretary, in
turn, has delegated the responsibility for administering the Act to the
Director of the Office of Workers’ Compensation Programs (OWCP). Except as otherwise provided by law, the
Director of OWCP and his or her designees have the exclusive authority to
administer, interpret and enforce the provisions of the Act.
§
30.2 In general, how have the tasks associated
with the administration of the EEOICPA claims process been assigned?
(a)
In E.O. 13179, the President assigned the tasks associated with
administration of the EEOICPA claims process among the Secretaries of Labor, Health and Human Services and
Energy, and the Attorney General. In
light of the fact that the Secretary of Labor has been assigned primary
responsibility for administering the EEOICPA, almost the entire claims process
is within the exclusive control of OWCP.
This means that all claimants file their claims with OWCP, and OWCP is
responsible for granting or denying compensation under the Act (see §§ 30.100
through 30.102). OWCP also provides
assistance to claimants and potential claimants by providing information
regarding eligibility and other program requirements, including information on
completing claim forms and the types and availability of medical testing and
diagnostic services related to occupational illnesses under Part B of the Act
and covered illnesses under Part E of the Act.
In addition, OWCP provides an administrative review process for
claimants who disagree with its recommended and final adverse decisions on
claims of entitlement (see §§ 30.300 through 30.320).
(b)
However, HHS has exclusive control of the portion of the claims process under
which it provides reconstructed doses for certain radiogenic cancer claims (see
§ 30.115). HHS also has exclusive
control of the process for designating classes of employees to be added to the
Special Exposure Cohort under Part B of the Act, and has promulgated
regulations governing that process at 42 CFR part 83. Finally, HHS has promulgated regulations at
42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability
of an employee’s radiogenic cancer (see § 30.213). DOE and DOJ must, among other things, notify
potential claimants and submit evidence that OWCP deems necessary for its
adjudication of claims under EEOICPA (see §§ 30.105, 30.112, 30.206, 30.212 and
30.221).
§
30.3 What do these regulations contain?
This part 30 sets forth the regulations
governing administration of all claims that are filed with OWCP, except to the
extent specified in certain provisions.
Its provisions are intended to assist persons seeking benefits under
EEOICPA, as well as personnel in the various federal agencies and DOL who
process claims filed under EEOICPA or who perform administrative functions with
respect to EEOICPA. The various subparts
of this part contain the following:
(a)
Subpart A: the general statutory
and administrative framework for processing claims under both Parts B and E of EEOICPA. It contains a statement of purpose and scope,
together with definitions of terms, information regarding the disclosure of
OWCP records, and a description of rights and penalties involving EEOICPA
claims, including convictions for fraud.
(b)
Subpart B: the rules for filing
claims for entitlement under EEOICPA. It
also addresses general standards regarding necessary evidence and the burden of
proof, descriptions of basic forms and special procedures for certain cancer
claims.
(c)
Subpart C: the eligibility
criteria for occupational illnesses and covered illnesses compensable under
Parts B and E of EEOICPA.
(d)
Subpart D: the rules governing
the adjudication process leading to recommended and final decisions on claims for
entitlement filed under Parts B and E of EEOICPA. It also describes the hearing and reopening
processes.
(e)
Subpart E: the rules governing
medical care, second opinion and referee medical examinations directed by OWCP
as part of its adjudication of entitlement, and medical reports and records in
general. It also addresses the kinds of medical
treatment that may be authorized and how medical bills are paid.
(f)
Subpart F: the rules relating to
the payment of monetary compensation available under Parts B and E of EEOICPA. It includes provisions on medical monitoring
for beryllium sensitivity, on the identification, processing and recovery of overpayments
of compensation, and on the maximum aggregate amount of compensation payable
under Part E.
(g)
Subpart G: the rules concerning the
representation of claimants in connection with the administrative adjudication
of claims before OWCP, subrogation of the United States, the effect of tort
suits against beryllium vendors and atomic weapons employers, and the
coordination of benefits under Part E of EEOICPA with state workers’
compensation benefits for the same covered illness.
(h)
Subpart H: information for
medical providers. It includes rules for
medical reports, medical bills, and the OWCP medical fee schedule, as well as
the provisions for exclusion of medical providers.
(i)
Subpart I: the rules relating to the
adjudication of alleged periods of wage-loss of covered Part E employees. It also includes provisions on the use by
OWCP of Social Security Administration earnings information and certain medical
evidence to establish compensable wage-loss.
(j)
Subpart J: the rules relating to
the adjudication of alleged impairment due to the exposure of covered Part E employees
to toxic substances. It includes
provisions relating to the medical evaluation of ratable impairments, the rating
of progressive conditions, apportionment, and qualifications of physicians.
Definitions
§
30.5 What are the definitions used in
this part?
(a) Act
or EEOICPA means the Energy Employees Occupational Illness Compensation
Program Act of 2000, as amended (42 U.S.C. 7384 et seq.).
(b) Atomic
weapon means any device utilizing atomic energy, exclusive of the means for
transporting or propelling the device (where such means is a separable and
divisible part of the device), the principle purpose of which is for use as, or
for development of, a weapon, a weapon prototype, or a weapon test device.
(c) Atomic
weapons employee means:
(1) An
individual employed by an atomic weapons employer during a period when the
employer was processing or producing, for the use by the United States, material
that emitted radiation and was used in the production of an atomic weapon,
excluding uranium mining and milling; or
(2)(i)
An individual employed at a facility that the National Institute for
Occupational Safety and Health reported had a potential for significant
residual contamination outside of the period described in paragraph (c)(1) of
this section;
(ii)
By the atomic weapons employer that owned the facility referred to in
paragraph (c)(2)(i) of this section, or a subsequent owner or operator of such
facility; and
(iii)
During a period reported by the National Institute for Occupational
Safety and Health (NIOSH), in its report dated
October 2003 and titled “Report on Residual Radioactive
and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium
Vendor Facilities,” or any update to that report, to
have a potential for significant residual radioactive contamination.
(d) Atomic
weapons employer means any entity, other than the
(1)
Processed or produced, for use by the
(2)
Is designated by the Secretary of Energy as an atomic weapons employer
for purposes of the compensation program.
(e) Atomic
weapons employer facility means any facility, owned by an atomic weapons
employer, that:
(1)
Is or was used to process or produce, for use by the United States,
material that emitted radiation and was used in the production of an atomic
weapon, excluding uranium mining or milling; and
(2)
Is designated as such in the list periodically published in the Federal
Register by DOE.
(f) Attorney
General means the Attorney General of the
(g) Benefit
or Compensation means the money the Department pays to or on behalf of either
a covered Part B employee under Part B, or a covered Part E employee under Part
E, from the Energy Employees Occupational Illness Compensation Fund. However, the term “compensation” used in
section 7385f(b) of EEOICPA (restricting entitlement to only one payment of
compensation under Part B) means only the payments specified in section
7384s(a)(1) and in section 7384u(a).
Except as used in section 7385f(b), these two terms also include any
other amounts paid out of the Fund for such things as medical treatment,
monitoring, examinations, services, appliances and supplies as well as for
transportation and expenses incident to the securing of such medical treatment,
monitoring, examinations, services, appliances, and supplies.
(h) Beryllium
sensitization or sensitivity means that the individual has an abnormal
beryllium lymphocyte proliferation test (LPT) performed on either blood or lung
lavage cells.
(i) Beryllium
vendor means the specific corporations and named predecessor corporations
listed in section 7384l(6) of the Act and any of the facilities designated as
such in the list periodically published in the Federal Register by DOE.
(j) Chronic
silicosis means a non-malignant lung disease if:
(1)
The initial occupational exposure to silica dust preceded the onset of
silicosis by at least 10 years; and
(2)
A written diagnosis of silicosis is made by a medical doctor and is
accompanied by:
(i)
A chest radiograph, interpreted by an individual certified by the
National Institute for Occupational Safety and Health as a B reader,
classifying the existence of pneumoconioses of category 1/0 or higher; or
(ii)
Results from a computer assisted tomograph or other imaging technique
that are consistent with silicosis; or
(iii)
Lung biopsy findings consistent with silicosis.
(k) Claim
means a written assertion to OWCP of an individual’s entitlement to benefits
under EEOICPA, submitted in a manner authorized by this part.
(l) Claimant
means the individual who is alleged to satisfy the criteria for compensation
under the Act.
(m) Compensation
fund or fund means the fund established on the books of the Treasury
for payment of benefits and compensation under the Act.
(n) Contemporaneous
record means any document created at or around the time of the event that
is recorded in the document.
(o) Covered
beryllium illness means any of the following:
(1)
Beryllium sensitivity as established by an abnormal LPT performed on
either blood or lung lavage cells.
(2)
Established chronic beryllium disease (see § 30.207(c)).
(3)
Any injury, illness, impairment, or disability sustained as a
consequence of a covered beryllium illness referred to in paragraphs (o)(1) or
(2) of this section.
(p) Covered
Part E employee means, under Part E of the Act, a Department of Energy
contractor employee or a RECA section 5 uranium worker who has been determined
by OWCP to have contracted a covered illness (see paragraph (r) of this
section) through exposure at a Department of Energy facility or a RECA section
5 facility, as appropriate.
(q) Covered
Part B employee means, under Part B of the Act, a covered beryllium
employee (see § 30.205), a covered employee with cancer (see § 30.210(a)), a covered
employee with chronic silicosis (see § 30.220), or a covered uranium employee
(see paragraph (s) of this section).
(r) Covered illness means,
under Part E of the Act relating to exposures at a DOE facility or a RECA
section 5 facility, an illness or death resulting from exposure to a toxic
substance.
(s) Covered
uranium employee means, under Part B of the Act, an individual who has been
determined by DOJ to be entitled to an award under section 5 of the RECA, whether
or not the individual was the employee or the deceased employee’s survivor.
(t) Current
or former employee as defined in 5 U.S.C. 8101(1) as used in § 30.205(a)(1)
means an individual who fits within one of the following listed groups:
(1)
A civil officer or employee in any branch of the Government of the
(2)
An individual rendering personal service to the United States similar to
the service of a civil officer or employee of the United States, without pay or
for nominal pay, when a statute authorizes the acceptance or use of the service,
or authorizes payment of travel or other expenses of the individual;
(3)
An individual, other than an independent contractor or individual
employed by an independent contractor, employed on the Menominee Indian
Reservation in Wisconsin in operations conducted under a statute relating to
tribal timber and logging operations on that reservation;
(4)
An individual appointed to a position on the office staff of a former
President; or
(5)
An individual selected and serving as a Federal petit or grand juror.
(u) Department
means the United States Department of Labor
(DOL).
(v) Department
of Energy or DOE includes the predecessor agencies of the DOE,
including the Manhattan Engineering District.
(w) Department
of Energy contractor employee means any of the following:
(1)
An individual who is or was in residence at a DOE facility as a
researcher for one or more periods aggregating at least 24 months.
(2)
An individual who is or was employed at a DOE facility by:
(i) An
entity that contracted with the DOE to provide management and operating,
management and integration, or environmental remediation at the facility; or
(ii)
A contractor or subcontractor that provided services, including
construction and maintenance, at the facility.
(x)(1)
Department of Energy facility means, as determined by the
Director of OWCP, any building,
structure, or premise, including the grounds upon which such building,
structure, or premise is located:
(i)
In which operations are, or have been, conducted by, or on behalf of,
the DOE (except for buildings, structures, premises, grounds, or operations
covered by E.O. 12344, dated February 1, 1982, pertaining to the Naval Nuclear
Propulsion Program); and
(ii)
With regard to which the DOE has or had:
(A)
A proprietary interest; or
(B)
Entered into a contract with an entity to provide management and
operation, management and integration, environmental remediation services,
construction, or maintenance services.
(2) DOL hereby adopts the list of
facilities established by the Department of Energy that is in effect on the
date of the publication of this Interim Final Rule. DOL will periodically update this list as it
deems appropriate in its sole discretion by publishing a revised list of
covered facilities in the Federal Register.
(y) Disability
means, for purposes of determining entitlement to payment of Part B benefits under
section 7384s(a)(1) of the Act, having been determined by OWCP to have or have had
established chronic beryllium disease, cancer, or chronic silicosis.
(z) Eligible
surviving beneficiary means any individual who is entitled under sections
7384s(e), 7384u(e), or 7385s-3(c) and (d) of the Act to receive a payment on
behalf of a deceased covered Part B employee or a deceased covered Part E
employee.
(aa)
Employee means either a current or former employee.
(bb)
Occupational illness means, under Part B of the Act, a covered
beryllium illness, cancer sustained in the performance of duty as defined in §
30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has
awarded compensation under section 5 of RECA.
(cc)
OWCP means the Office of Workers’ Compensation Programs, United
States Department of Labor. One of the four divisions of OWCP is the
Division of Energy Employees Occupational Illness Compensation.
(dd)
Physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within
the scope of their practice as defined by state law. The term “physician” includes chiropractors
only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.
(ee)
Qualified physician means any physician who has not been excluded
under the provisions of subpart H of this part.
Except as otherwise provided by regulation, a qualified physician shall
be deemed to be designated or approved by OWCP.
(ff)
Specified cancer (as defined in section 4(b)(2) of RECA and in
the EEOICPA) means:
(1)
Leukemia (other than chronic lymphocytic leukemia) provided that the
onset of the disease was at least 2 years after first exposure;
(2)
Lung cancer (other than in situ lung cancer that is discovered during or
after a post-mortem exam);
(3)
Bone cancer;
(4)
Renal cancers; or
(5)
The following diseases, provided onset was at least 5 years after first
exposure:
(i)
Multiple myeloma;
(ii)
Lymphomas (other than Hodgkin’s disease); and
(iii)
Primary cancer of the:
(A)
Thyroid;
(B)
Male or female breast;
(C)
Esophagus;
(D)
Stomach;
(E)
Pharynx;
(F)
Small intestine;
(G)
Pancreas;
(H)
Bile ducts;
(I)
Gall bladder;
(J)
Salivary gland;
(K)
Urinary bladder;
(L)
Brain;
(M)
(N)
Ovary; or
(O)
Liver (except if cirrhosis or hepatitis B is indicated).
(6)
The specified diseases designated in this section mean the physiological
condition or conditions that are recognized by the National Cancer Institute
under those names or nomenclature, or under any previously accepted or commonly
used names or nomenclature.
(gg)
Survivor means:
(1) For
claims under Part B of the Act, and subject to paragraph (gg)(3) of this
section, a surviving spouse, child, parent, grandchild and grandparent of a
deceased covered Part B employee.
(2)
For claims under Part E of the Act, and subject to paragraph (gg)(3) of
this section, a surviving spouse and child of a deceased covered Part E
employee.
(3)
Those individuals listed in paragraphs (gg)(1) and (gg)(2) of this
section do not include any individuals not living as of the time OWCP makes a
lump-sum payment or payments to an eligible surviving beneficiary or
beneficiaries.
(hh)
Time of injury means:
(1)
In regard to a claim arising out of exposure to beryllium or silica, the
last date on which a covered Part B employee was exposed to such substance in
the performance of duty in accordance with sections 7384n(a) or 7384r(c) of the
Act; or
(2)
In regard to a claim arising out of exposure to radiation under Part B, the
last date on which a covered Part B employee was exposed to radiation in the
performance of duty in accordance with section 7384n(b) of the Act or, in the
case of a member of the Special Exposure Cohort, the last date on which the
member of the Special Exposure Cohort was employed at the Department of Energy
facility or the atomic weapons employer facility at which the member was
exposed to radiation; or
(3)
In regard to a claim arising out of exposure to a toxic substance, the
last date on which a covered Part E employee was employed at the Department of
Energy facility or RECA section 5 facility, as appropriate, at which the
exposure took place.
(ii)
Toxic substance means any material that has the potential to
cause illness or death because of its radioactive, chemical, or biological
nature.
(jj) Workday means a single workshift
whether or not it occurred on more than one calendar day.
Information in Program Records
§
30.10 Are all OWCP records relating to
claims filed under the EEOICPA considered confidential?
All OWCP records relating to claims for
benefits under the EEOICPA are considered confidential and may not be released,
inspected, copied or otherwise disclosed except as provided in the Freedom of
Information Act and the Privacy Act of 1974.
§
30.11 Who maintains custody and control
of claim records?
All OWCP records relating to claims for
benefits filed under the Act are covered by the Privacy Act system of records
entitled DOL/ESA-49 (Office of Workers’ Compensation Programs, Energy Employees
Occupational Illness Compensation Program Act File). This system of records is maintained by and
under the control of OWCP, and, as such, all records covered by DOL/ESA-49 are
official records of OWCP. The protection,
release, inspection and copying of records covered by DOL/ESA-49 shall be
accomplished in accordance with the rules, guidelines and provisions of this
part, as well as those contained in 29 CFR parts 70 and 71, and with the notice
of the system of records and routine uses published in the Federal Register. All questions relating to access, disclosure,
and/or amendment of claims records maintained by OWCP are to be resolved in
accordance with this section.
§
30.12 What process is used by a person
who wants to obtain copies of or amend EEOICPA claim records?
(a)
A claimant seeking copies of his or her official EEOICPA file should
address a request to the District Director of the OWCP district office having
custody of the file.
(b)
Any request to amend a record covered by DOL/ESA-49 should be directed
to the district office having custody of the official file.
(c)
Any administrative appeal taken from a denial issued by OWCP under this
section shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.
Rights and Penalties
§
30.15 May EEOICPA benefits be assigned,
transferred or garnished?
(a)
Pursuant to section 7385f(a) of the Act, no claim for EEOICPA benefits
may be assigned or transferred.
(b)
Provisions of the Social Security Act (42 U.S.C. 659) and regulations
issued by the Office of Personnel Management at 5 CFR part 581 permit the
garnishment of payments of EEOICPA monetary benefits to collect overdue alimony
and child support. A request to garnish
a payment for either of these purposes should be submitted to the district
office that is handling the EEOICPA claim, and must be accompanied by a copy of
the pertinent state agency or court order.
§
30.16 What penalties may be imposed in
connection with a claim under the Act?
(a)
Other statutory provisions make it a crime to file a false or fraudulent
claim or statement with the federal government in connection with a claim under
the Act. Included among these provisions
is 18 U.S.C. 1001. Enforcement of
criminal provisions that may apply to claims under the Act is within the
jurisdiction of the Department of Justice.
(b)
In addition, administrative proceedings may be initiated under the
Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801 et seq.,
to impose civil penalties and assessments against persons or entities who make,
submit or present, or cause to be made, submitted or presented, false,
fictitious or fraudulent claims or written statements to OWCP in connection
with a claim under EEOICPA. The Department’s regulations implementing PFCRA
are found at 29 CFR part 22.
§
30.17 Is a beneficiary who defrauds the
government in connection with a claim for EEOICPA benefits still entitled to
those benefits?
When a beneficiary either pleads guilty to
or is found guilty on either Federal or State criminal charges of defrauding
the federal or a state government in connection with a claim for benefits under
the Act or any other federal or state workers’ compensation law, the
beneficiary forfeits (effective the date either the guilty plea is accepted or
a verdict of guilty is returned after trial) any entitlement to any further
benefits for any injury, illness or death covered by this part for which the
time of injury was on or before the date of such guilty plea or verdict. Any subsequent change in or recurrence of the
beneficiary’s medical condition does not affect termination of entitlement
under this section.
Subpart B—Filing Claims; Evidence and
Burden of Proof; Special Procedures for Certain Cancer Claims
Filing Claims for Benefits Under EEOICPA
§
30.100 In general, how does an employee
file an initial claim for benefits?
(a)
To claim benefits under EEOICPA, an employee must file a claim in
writing. Form EE-1 should be used for
this purpose, but any written communication that requests benefits under
EEOICPA will be considered a claim. It
will, however, be necessary for an employee to submit a Form EE-1 for OWCP to
fully develop the claim. Copies of Form
EE-1 may be obtained from OWCP or on the Internet at www.dol.gov/esa/regs/
compliance/owcp/eeoicp/main.htm. The employee’s claim must be filed with OWCP, but
another person may do so on the employee’s behalf.
(b)
The employee may choose, at his or her own option, to file for benefits
for only certain conditions that are potentially compensable under the Act (e.g.,
the employee may not want to claim for an occupational illness or a covered
illness for which a payment has been received that would necessitate an offset
of EEOICPA benefits under the provisions of § 30.505(b) of these
regulations). The employee may withdraw
his or her claim by so requesting in writing to OWCP at any time before OWCP
determines his or her eligibility for benefits.
(c)
Except as provided in paragraph (d) of this section, a claim is
considered to be “filed” on the date that the employee mails his or her claim
to OWCP, as determined by postmark, or on the date that the claim is received
by OWCP, whichever is the earliest determinable date. However, in no event will a claim under Part
B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor will a
claim under Part E of EEOICPA be
considered to be “filed” earlier than October 30, 2000.
(1)
The employee, or the person filing the claim on behalf of the employee,
shall affirm that the information provided on the Form EE-1 is true, and must
inform OWCP of any subsequent changes to that information.
(2)
Except for a covered uranium employee filing a claim under Part B of the
Act, the employee is responsible for submitting with his or her claim, or
arranging for the submission of, medical evidence to OWCP that establishes that
he or she sustained an occupational illness and/or a covered illness. This required medical evidence is described in § 30.114
and does not refer to mere recitations of symptoms the employee experienced
that the employee believes indicate that he or she sustained an occupational
illness or a covered illness.
(d)
For those claims under Part E of EEOICPA that were originally filed with
DOE as claims for assistance under former section 7385o of EEOICPA (which was
repealed on October 28, 2004), a claim is considered to be “filed” on the date
that the employee mailed his or her claim to DOE, as determined by postmark, or
on the date that the claim was received by DOE, whichever is the earliest
determinable date. However, in no event
will a claim referred to in this paragraph be considered to be “filed” earlier
than
§
30.101 In general, how is a survivor’s
claim filed?
(a)
A survivor of an employee who sustained an occupational illness or a
covered illness must file a claim for compensation in writing. Form EE-2 should be used for this purpose,
but any written communication that requests survivor benefits under the Act
will be considered a claim. It will,
however, be necessary for a survivor to submit a Form EE-2 for OWCP to fully
develop the claim. Copies of Form EE-2
may be obtained from OWCP or on the Internet at
www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. The survivor’s claim must be filed with OWCP,
but another person may do so on the survivor’s behalf. Although only one survivor needs to file a
claim under this section to initiate the development process, OWCP will
distribute any monetary benefits payable on the claim among all eligible
surviving beneficiaries who have filed claims with OWCP.
(b)
A survivor may choose, at his or her own option, to file for benefits
for only certain conditions that are potentially compensable under the Act (e.g.,
the survivor may not want to claim for an occupational illness or a covered
illness for which a payment has been received that would necessitate an offset
of EEOICPA benefits under the provisions of § 30.505(b). The survivor may withdraw his or her claim by
so requesting in writing to OWCP at any time before OWCP determines his or her
eligibility for benefits.
(c)
A survivor must be alive to receive any payment under the EEOICPA; there
is no vested right to such payment.
(d)
Except as provided in paragraph (e) of this section, a survivor’s claim
is considered to be “filed” on the date that the survivor mails his or her
claim to OWCP, as determined by postmark, or the date that the claim is
received by OWCP, whichever is the earliest determinable date. However, in no event will a survivor’s claim
under Part B of the Act be considered to be “filed” earlier than July 31, 2001,
nor will a survivor’s claim under Part E of the Act be considered to be “filed”
earlier than October 30, 2000.
(1)
The survivor, or the person filing the claim on behalf of the survivor,
shall affirm that the information provided on the Form EE-2 is true, and must
inform OWCP of any subsequent changes to that information.
(2)
Except for the survivor of a covered uranium employee claiming under
Part B of the Act, the survivor is responsible for submitting, or arranging for
the submission of, evidence to OWCP that establishes that the employee upon
whom the survivor’s claim is based was eligible for such benefits, including
medical evidence that establishes that the employee sustained an occupational
illness or a covered illness. This
required medical evidence is described in § 30.114 and does not refer to mere recitations
by the survivor of symptoms the employee experienced that the survivor believes
indicate that the employee sustained an occupational illness or a covered
illness.
(e)
For those claims under Part E of EEOICPA that were originally filed with
DOE as claims for assistance under former section 7385o of EEOICPA (which was
repealed on October 28, 2004), a claim is considered to be “filed” on the date
that the survivor mailed his or her claim to DOE, as determined by postmark, or
on the date that the claim was received by DOE, whichever is the earliest
determinable date. However, in no event
will a claim referred to in this paragraph be considered to be “filed” earlier
than
(f) A
spouse or a child of a deceased DOE contractor employee or RECA section 5
uranium worker, who is not a covered spouse or covered child under Part E, may
submit a written request to OWCP for a determination of whether that deceased
DOE contractor employee or RECA section 5 uranium worker contracted a covered
illness under section 7385s-4(d) of EEOICPA.
(1)
Any such request submitted pursuant to paragraph (f) of this section
will not be considered a survivor’s claim for benefits under Part E of the Act.
(2)
As part of its consideration of any request submitted pursuant to
paragraph (f) of this section, OWCP will apply the eligibility criteria in §§
30.230 and 30.231 of these regulations.
However, the adjudicatory procedures contained in subpart D of this part
will not apply to OWCP’s consideration of such a request, and OWCP’s response
to the request will not constitute a final agency decision on entitlement to
any benefits under EEOICPA.
§
30.102 In general, how does an employee
file a claim for additional impairment or wage-loss under Part E of EEOICPA?
(a)
An employee previously awarded impairment benefits by OWCP may file a
claim for additional impairment benefits.
Such claim must be based on an increase in the employee’s minimum
impairment rating attributable to the covered illness or illnesses from the
impairment rating that formed the basis for the last award of such benefits by
OWCP. OWCP will only adjudicate claims
for such an increased rating that are filed at least two years from the date of
the last award of impairment benefits.
However, OWCP will not wait two years before it will adjudicate a claim
for additional impairment that is based on an allegation that the employee
sustained a new covered illness.
(b)
An employee previously awarded wage-loss benefits by OWCP may be
eligible for additional wage-loss benefits for periods of wage-loss that were
not addressed in a prior claim only if the employee had not reached his or her
Social Security retirement age at the time of the prior award. OWCP will adjudicate claims filed on a yearly
basis in connection with each succeeding calendar year for which qualifying
wage-loss under Part E is alleged, as well as claims that aggregate calendar
years for which qualifying wage-loss is alleged.
(c)
Employees should use Form EE-10 to claim for additional impairment or
wage-loss benefits under Part E of EEOICPA.
(1)
The employee, or the person filing the claim on behalf of the employee,
shall affirm that the information provided on Form EE-10 is true, and must
inform OWCP of any subsequent changes to that information.
(2)
The employee is responsible for submitting with any claim filed under
this section, or arranging for the submission of, factual and medical evidence establishing
that he or she experienced another calendar year of qualifying wage-loss,
and/or medical evidence establishing that he or she has an increased minimum
impairment rating, as appropriate.
§
30.103 How does a claimant make sure
that OWCP has the evidence necessary to process the claim?
(a)
Claims and certain required submissions should be made on forms prescribed
by OWCP. Persons submitting forms shall
not modify these forms or use substitute forms.
------------------------------------------------------------------------
Form No. Title
------------------------------------------------------------------------
(1) EE-1............................ Claim for Benefits Under the Energy
Employees Occupational Illness
Compensation Program Act
(2) EE-2............................ Claim for Survivor Benefits Under
the
Energy Employees Occupational
Illness Compensation Program Act.
(3) EE-3............................ Employment History for a Claim Under
the
Energy Employees Occupational
Illness Compensation Program Act
(4) EE-4............................ Employment History Affidavit for a
Claim Under the Energy Employees
Occupational Illness Compensation
Program Act
------------------------------------------------------------------------
(b)
Copies of the forms listed in this section are available for public
inspection at the Office of Workers’ Compensation Programs, Employment
Standards Administration, U.S. Department of Labor,
eeoicp/main.htm.
Verification of Alleged Employment
§
30.105 What must DOE do after an
employee or survivor files a claim?
(a)
After it receives a claim for benefits described in §§ 30.100 or 30.101,
OWCP may request that DOE verify the employment history provided by the
claimant. Upon receipt of such a
request, DOE will complete Form EE-5 as soon as possible and transmit the
completed form to OWCP. On this form,
DOE will certify either that it concurs with the employment history provided by
the claimant, that it disagrees with such history, or that it can neither
concur nor disagree after making a reasonable search of its records and also
making a reasonable effort to locate pertinent records not already in its
possession.
(b)
Claims for additional impairment or wage-loss benefits under Part E of
the Act described in § 30.102 will not require any verification of employment
by DOE, since OWCP will have made any required findings on this particular issue
when it adjudicated the employee’s initial claim for benefits.
§
30.106 Can OWCP request employment
verification from other sources?
(a) For
most claims filed under EEOICPA, DOE has access to sufficient factual
information to enable it to fulfill its obligations described in §
30.105(a). However, in instances where
it lacks such information, DOE may arrange for other entities to provide OWCP
with the information necessary to verify an employment history submitted as
part of a claim. These other entities
may consist of either current or former DOE contractors and subcontractors,
atomic weapons employers, beryllium vendors, or other entities with access to
relevant employment information.
(b)
On its own initiative, OWCP may also arrange for entities other than DOE
to perform the employment verification duties described in § 30.105(a).
Evidence and Burden of Proof
§
30.110 Who is entitled to compensation
under the Act?
(a) Under
Part B of EEOICPA, compensation is payable to the following covered Part B
employees, or their survivors:
(1)
A “covered beryllium employee” (as described in § 30.205(a)) with a
covered beryllium illness (as defined in § 30.5(o)) who was exposed to
beryllium in the performance of duty (in accordance with § 30.206).
(2)
A “covered Part B employee with cancer” (as described in § 30.210(a)).
(3)
A “covered Part B employee with chronic silicosis” (as described in §
30.220).
(4)
A “covered uranium employee” (as defined in § 30.5(s)).
(b)
Under Part E of EEOICPA, compensation is payable to a “covered Part E
employee” (as defined in § 30.5(p)), or his or her survivors.
(c)
Any claim that does not meet all of the criteria for at least one of
these categories, as set forth in the regulations in this part, must be denied.
(d)
All claims for benefits under the Act must comply with the claims
procedures and requirements set forth in subpart B of this part before any
payment can be made from the Fund.
§
30.111 What is the claimant’s
responsibility with respect to burden of proof, production of documents,
presumptions, and affidavits?
(a)
Except where otherwise provided in the Act and these regulations, the
claimant bears the burden of proving by a preponderance of the evidence the
existence of each and every criterion necessary to establish eligibility under
any compensable claim category set forth in § 30.110. Proof by a preponderance of the evidence
means that it is more likely than not that the proposition to be proved is
true. Subject to the exceptions
expressly provided in the Act and the regulations in this part, the claimant
also bears the burden of providing to OWCP all written medical documentation,
contemporaneous records, or other records and documents necessary to establish
any and all criteria for benefits set forth in these regulations.
(b)
In the event that the claim lacks required information or supporting
documentation, OWCP will notify the claimant of the deficiencies and provide him
or her an opportunity for correction of the deficiencies.
(c)
Written affidavits or declarations, subject to penalty for perjury, by
the employee, survivor or any other person, will be accepted as evidence of
employment history and survivor relationship for purposes of establishing
eligibility and may be relied on in determining whether a claim meets the
requirements of the Act for benefits if, and only if, such person attests that
due diligence was used to obtain records in support of the claim, but that no
records exist.
(d)
A claimant will not be entitled to any presumption otherwise provided
for in these regulations if substantial evidence exists that rebuts the
existence of the fact that is the subject of the presumption. Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. When such evidence exists, the claimant shall
be notified and afforded the opportunity to submit additional written medical
documentation or records.
§
30.112 What kind of evidence is needed
to establish covered employment and how will that evidence be evaluated?
(a)
Evidence of covered employment may include: employment records; pay stubs; tax returns; Social
Security records; and written affidavits or declarations, subject to penalty of
perjury, by the employee, survivor or any other person. However, no one document is required to
establish covered employment and a claimant is not required to submit all of
the evidence listed above. A claimant
may submit other evidence not listed above to establish covered
employment. To be acceptable as
evidence, all documents and records must be legible. OWCP will accept photocopies, certified
copies, and original documents and records.
(b) Pursuant
to § 30.105, DOE shall certify that it concurs with the employment information
provided by the claimant, that it disagrees with the information provided by
the claimant, or, after a reasonable search of its records and a reasonable
effort to locate pertinent records not already in its possession, it can
neither concur nor disagree with the information provided by the claimant.
(1)
If DOE certifies that it concurs with the employment information
provided by the claimant, then the criterion for covered employment will be
established.
(2)
If DOE certifies that it disagrees with the information provided by the
claimant or that after a reasonable search of its records and a reasonable
effort to locate pertinent records not already in its possession it can neither
concur nor disagree with the information provided by the claimant, OWCP will
evaluate the evidence submitted by the claimant to determine whether the
claimant has established covered employment by a preponderance of the
evidence. OWCP may request additional
evidence from the claimant to demonstrate that the claimant has met the
criterion for covered employment.
Nothing in this section shall be construed to limit OWCP’s ability to
require additional documentation.
(3)
If the only evidence of covered employment is a self-serving affidavit
and DOE either disagrees with the assertion of covered employment or cannot
concur or disagree with the assertion of covered employment, then OWCP may
reject the claim based upon a lack of evidence of covered employment.
§
30.113 What are the requirements for
written medical documentation, contemporaneous records, and other records or
documents?
(a)
All written medical documentation, contemporaneous records, and other
records or documents submitted by an employee or his or her survivor to prove
any criteria provided for in these regulations must be legible. OWCP will accept photocopies, certified
copies, and original documents and records.
(b)
To establish eligibility, the employee or his or her survivor may be
required to provide, where appropriate, additional contemporaneous records to
the extent they exist or an authorization to release additional contemporaneous
records or a statement by the custodian(s) of the record(s) certifying that the
requested record(s) no longer exist.
Nothing in this section shall be construed to limit OWCP’s ability to
require additional documentation.
(c)
If a claimant submits a certified statement, by a person with knowledge
of the facts, that the medical records containing a diagnosis and date of
diagnosis of a covered medical condition no longer exist, then OWCP may
consider other evidence to establish a diagnosis and date of diagnosis of a
covered medical condition. However, if
the certified statement is a self-serving document, OWCP may reject the claim
based upon a lack of evidence of a covered medical condition.
§
30.114 What kind of evidence is needed
to establish a covered medical condition and how will that evidence be
evaluated?
(a)
Evidence of a covered medical condition may include: a physician’s report, laboratory reports,
hospital records, death certificates, x-rays, magnetic resonance images or
reports, computer axial tomography or other imaging reports, lymphocyte
proliferation testings, beryllium patch tests, pulmonary function or exercise
testing results, pathology reports including biopsy results and other medical
records. A claimant is not required to
submit all of the evidence listed in this paragraph. A claimant may submit other evidence that is
not listed in this paragraph to establish a covered medical condition. Nothing in this section shall be construed to
limit OWCP’s ability to require additional documentation.
(b)
The medical evidence submitted will be used to establish the diagnosis
and the date of diagnosis of the covered medical condition.
(1)
For covered beryllium illnesses, additional medical evidence, as set
forth in § 30.207, is required to establish a beryllium illness.
(2)
For chronic silicosis, additional medical evidence, as set forth in §
30.222, is required to establish chronic silicosis.
(3)
For consequential injuries, illnesses, impairments or diseases, the
claimant must also submit a physician’s fully rationalized medical report
showing a causal relationship between the resulting injury, illness, impairment
or disease and the covered medical condition.
(c)
OWCP will evaluate the medical evidence in accordance with recognized
and accepted diagnostic criteria used by physicians to determine whether the
claimant has established the medical condition for which compensation is sought
in accordance with the requirements of the Act.
Special Procedures for Certain Radiogenic
Cancer Claims
§
30.115 For those radiogenic cancer
claims that do not seek benefits under Part B of the Act pursuant to the
Special Exposure Cohort provisions, what will OWCP do once it determines that
an employee contracted cancer?
(a)
Other than claims for a non-radiogenic cancer listed by HHS at 42 CFR
81.30, or claims seeking benefits under Part E of the Act that have previously
been accepted under section 7384u of the Act, or claims previously accepted
under Part B pursuant to the Special Exposure Cohort provisions, OWCP will
forward the claim package (including, but not limited to, Forms EE-1, EE-2, EE-3,
EE-4 and EE-5, as appropriate) to HHS for dose reconstruction. At that point in time, development of the
claim by OWCP may be suspended.
(1)
This package will include OWCP’s initial findings in regard to the
diagnosis and date of diagnosis of the employee, as well as any employment
history compiled by OWCP (including information such as dates and locations
worked, and job titles). The package,
however, will not constitute either a recommended or final decision by OWCP on
the claim.
(2)
HHS will then reconstruct the radiation dose of the employee, after such
further development of the employment history as it may deem necessary, and
provide OWCP, DOE and the claimant with the final dose reconstruction
report. The final dose reconstruction
record will be delivered to OWCP with the final dose reconstruction report and
to the claimant upon request.
(b)
Following its receipt of the reconstructed dose from HHS, OWCP will
resume its adjudication of the cancer claim and consider whether the claimant
has met the eligibility criteria set forth in subpart C of this part. However, during the period before it receives
a reconstructed dose from HHS, OWCP may continue to develop other aspects of a
claim, to the extent that it deems such development to be appropriate.
Subpart C--Eligibility Criteria
General Provisions
§
30.200 What is the scope of this
subpart?
The regulations in this subpart describe
the criteria for eligibility for benefits for claims under Part B of EEOICPA relating
to covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t of
the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of the Act;
for chronic silicosis under sections 7384l, 7384r, 7384s and 7384t of the Act;
and for claims relating to covered uranium employees under sections 7384t and
7384u of the Act. These regulations also
describe the criteria for eligibility for benefits for claims under Part E of
EEOICPA relating to covered illnesses under sections 7385s-4 and 7385s-5 of the
Act. This subpart describes the type and
extent of evidence that will be necessary to establish the criteria for
eligibility for compensation for these illnesses.
Eligibility Criteria for Claims Relating
to Covered Beryllium Illness Under Part B of EEOICPA
§
30.205 What are the criteria for
eligibility for benefits relating to beryllium illnesses covered under Part B
of EEOICPA?
To establish eligibility for benefits under
this section, the claimant must establish the criteria set forth in both
paragraphs (a) and (b) of this section:
(a)
The employee is a covered beryllium employee only if the criteria in
paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and (a)(3) of this
section, are established:
(1)
The employee is a “current or former employee as defined in 5 U.S.C.
8101(1)” (see § 30.5(t) of this part) who may have been exposed to beryllium at
a DOE facility or at a facility owned, operated, or occupied by a beryllium
vendor; or
(2)
The employee is a current or former civilian employee of:
(i)
Any entity that contracted with the DOE to provide management and
operation, management and integration, or environmental remediation of a DOE
facility; or
(ii)
Any contractor or subcontractor that provided services, including
construction and maintenance, at such a facility; or
(iii)
A beryllium vendor, or of a contractor or subcontractor of a beryllium vendor,
during a period when the vendor was engaged in activities related to the
production or processing of beryllium for sale to, or use by, the DOE,
including periods during which environmental remediation of a vendor’s facility
was undertaken pursuant to a contract between the vendor and DOE; and
(3)
The civilian employee was exposed to beryllium in the performance of
duty by establishing that he or she was, during a period when beryllium dust,
particles, or vapor may have been present at such a facility:
(i)
Employed at a DOE facility (as defined in § 30.5(x) of this part); or
(ii)
Present at a DOE facility, or at a facility owned, operated, or occupied
by a beryllium vendor, because of his or her employment by the
(b)
The employee has one of the following:
(1)
Beryllium sensitivity as established by an abnormal beryllium LPT
performed on either blood or lung lavage cells.
(2)
Established chronic beryllium disease.
(3)
Any injury, illness, impairment, or disability sustained as a
consequence of the conditions specified in paragraphs (b)(1) and (2) of this
section.
§
30.206 How does a claimant prove that
the employee was a “covered beryllium employee” exposed to beryllium dust,
particles or vapor in the performance of duty?
(a)
Proof of employment at or physical presence at a DOE facility, or a
facility owned, operated, or occupied by a beryllium vendor, because of employment
by the United States, a beryllium vendor, or a contractor or subcontractor of a
beryllium vendor during a period when beryllium dust, particles, or vapor may
have been present at such a facility, may be made by the submission of any
trustworthy records that, on their face or in conjunction with other such
records, establish that the employee was employed or present at a covered
facility and the time period of such employment or presence.
(b)
If the evidence shows that exposure occurred while the employee was
employed or present at a facility during a time frame that is outside the
relevant time frame indicated for that facility by DOE, OWCP may request that
DOE provide additional information on the facility. OWCP will determine whether the evidence of
record supports enlarging the relevant time frame for that facility.
(c)
If the evidence shows that exposure occurred while the employee was
employed or present at a facility that would have to be designated by DOE as a
beryllium vendor under section 7384m of the Act to be a covered facility, and
that the facility has not been so designated, OWCP will deny the claim on the
ground that the facility is not a covered facility.
(d)
Records from the following sources may be considered as evidence for
purposes of establishing employment or presence at a covered facility:
(1)
Records or documents created by any federal government agency (including
verified information submitted for security clearance), any tribal government,
or any state, county, city or local government office, agency, department,
board or other entity, or other public agency or office.
(2)
Records or documents created by any vendor, processor, or producer of
beryllium or related products designated as a beryllium vendor by the DOE in
accordance with section 7384m of the Act.
(3)
Records or documents created as a by product of any regularly conducted
business activity or by an entity that acted as a contractor or subcontractor
to the DOE.
§
30.207 How does a claimant prove a
diagnosis of a beryllium disease covered under Part B?
(a)
Written medical documentation is required in all cases to prove that the
employee developed a covered beryllium illness.
Proof that the employee developed a covered beryllium illness must be
made by using the procedures outlined in paragraphs (b), (c), or (d) of this
section.
(b)
Beryllium sensitivity or sensitization is established with an abnormal
LPT performed on either blood or lung lavage cells.
(c)
Chronic beryllium disease is established in the following manner:
(1)
For diagnoses on or after
(i)
A lung biopsy showing granulomas or a lymphocytic process consistent
with chronic beryllium disease;
(ii)
A computerized axial tomography scan showing changes consistent with
chronic beryllium disease; or
(iii) Pulmonary function or
exercise testing showing pulmonary deficits consistent with chronic beryllium
disease.
(2) For diagnoses before
(i)
Occupational or environmental history, or epidemiologic evidence of
beryllium exposure; and
(ii)
Any three of the following criteria:
(A)
Characteristic chest radiographic (or computed tomography (CT))
abnormalities.
(B)
Restrictive or obstructive lung physiology testing or diffusing lung capacity
defect.
(C)
Lung pathology consistent with chronic beryllium disease.
(D)
Clinical course consistent with a chronic respiratory disorder.
(E)
Immunologic tests showing beryllium sensitivity (skin patch test or
beryllium blood test preferred).
(d)
An injury, illness, impairment or disability sustained as a consequence
of beryllium sensitivity or established chronic beryllium disease must be
established with a fully rationalized medical report by a physician that shows
the relationship between the injury, illness, impairment or disability and the
beryllium sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness,
impairment or disability manifests itself after a diagnosis of beryllium
sensitivity or established chronic beryllium disease, nor the belief of the
claimant that the injury, illness, impairment or disability was caused by the
beryllium sensitivity or established chronic beryllium disease, is sufficient
in itself to prove a causal relationship.
Eligibility Criteria for Claims Relating
to Radiogenic Cancer Under Parts B and E o EEOICPA
§
30.210 What are the criteria for
eligibility for benefits relating to radiogenic cancer?
(a)
To establish eligibility for benefits for radiogenic cancer under Part B
of EEOICPA, an employee or his or her
survivor must show that:
(1)
The employee has been diagnosed with one of the forms of cancer
specified in § 30.5(ff) of this part; and
(i)
Is a member of the Special Exposure Cohort (as described in § 30.214(a)
of this subpart) who, as a civilian DOE employee or civilian DOE contractor
employee, contracted the specified cancer after beginning employment at a DOE
facility; or
(ii)
Is a member of the Special Exposure Cohort (as described in § 30.214(a)
of this subpart) who, as a civilian atomic weapons employee, contracted the
specified cancer after beginning employment at an atomic weapons employer
facility (as defined in § 30.5(e)); or
(2)
The employee has been diagnosed with cancer; and
(i)(A)
Is/was a civilian DOE employee who contracted that cancer after
beginning employment at a DOE facility; or
(B)
Is/was a civilian DOE contractor employee who contracted that cancer
after beginning employment at a DOE facility; or
(C)
Is/was a civilian atomic weapons employee who contracted that cancer
after beginning employment at an atomic weapons employer facility; and
(ii)
The cancer was at least as likely as not related to the employment at
the DOE facility or atomic weapons employer facility; or
(3)
The employee has been diagnosed with an injury, illness, impairment or
disease that arose as a consequence of
the accepted cancer.
(b)(1)
To establish eligibility for benefits for radiogenic cancer under Part E
of EEOICPA, an employee or his or her
survivor must show that:
(i)
The employee has been diagnosed with cancer; and
(A)
Is/was a civilian DOE contractor employee or a civilian RECA section 5
uranium worker who contracted that cancer after beginning employment at a DOE
facility or a RECA section 5 facility; and
(B)
The cancer was at least as likely as not related to exposure to a toxic
substance of a radioactive nature at a DOE facility or a RECA section 5
facility; and
(C)
It is at least as likely as not that the exposure to such toxic
substance(s) was related to employment at a DOE facility or a RECA section 5
facility; or
(ii)
The employee has been diagnosed with an injury, illness, impairment or
disease that arose as a consequence of
the accepted cancer.
(2)
Eligibility for benefits for radiogenic cancer under Part E in a claim
that has previously been accepted under Part B pursuant to the Special Exposure
Cohort provisions is described in § 30.230(a) of these regulations.
§
30.211 How does a claimant establish
that the employee has or had contracted cancer?
A claimant establishes that the employee
has or had contracted a specified cancer (as defined in § 30.5(ff)) or other cancer
with medical evidence that sets forth an explicit diagnosis of cancer and the
date on which that diagnosis was first made.
§
30.212 How does a claimant establish
that the employee contracted cancer after beginning employment at a DOE
facility, an atomic weapons employer facility or a RECA section 5 facility?
(a)
Proof of employment by the DOE or a DOE contractor at a DOE facility, or
by an atomic weapons employer at an atomic weapons employer facility, or at a
RECA section 5 facility, may be made by the submission of any trustworthy records
that, on their face or in conjunction with other such records, establish that
the employee was so employed and the time period(s) of such employment.
(b)(1)
Except as provided in paragraph (b)(2) of this section, if the evidence
shows that exposure occurred while the employee was employed at a facility
during a time frame that is outside the relevant period indicated for that
facility by DOE, OWCP may request that DOE provide additional information on
the facility. OWCP will determine
whether the evidence of record supports enlarging the relevant period for that
facility.
(2)
OWCP may choose not to request that DOE provide additional information
on an atomic weapons employer facility that NIOSH reported had a potential for
significant residual radiation contamination in its report dated October 2003 and titled “Report on Residual
Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities
and Beryllium Vendor Facilities,” or any update to that report,
if the evidence referred to in paragraph (a) of this section establishes that
the employee was employed at that facility during a period when NIOSH reported
that it had a potential for significant residual radiation contamination.
(c) If
the evidence shows that exposure occurred while the employee was employed by an
employer that would have to be designated by DOE as an atomic weapons employer
under section 7384l(4) of the Act to be a covered employer, and that the
employer has not been so designated, OWCP will deny the claim on the ground
that the employer is not a covered atomic weapons employer.
(d)
Records from the following sources may be considered as evidence for
purposes of establishing employment or presence at a covered facility:
(1)
Records or documents created by any federal government agency (including
verified information submitted for security clearance), any tribal government,
or any state, county, city or local government office, agency, department,
board or other entity, or other public agency or office.
(2)
Records or documents created as a byproduct of any regularly conducted
business activity or by an entity that acted as a contractor or subcontractor
to the DOE.
§
30.213 How does a claimant establish
that the radiogenic cancer was at least as likely as not related to employment
at the DOE facility, the atomic weapons employer facility, or the RECA section
5 facility?
(a) HHS,
with the advice of the Advisory Board on Radiation and Worker Health, has
issued regulatory guidelines at 42 CFR part 81 that OWCP uses to determine whether
radiogenic cancers claimed under Parts B and E were at least as likely as not
related to employment at a DOE facility, an atomic weapons employer facility,
or a RECA section 5 facility, as appropriate. Persons should consult HHS’s regulations for
information regarding the factual evidence that will be considered by OWCP, in
addition to the employee’s radiation dose reconstruction that will be provided
to OWCP by HHS, in making this particular factual determination.
(b)
HHS’s regulations satisfy the legal requirements in section 7384n(c) of
the Act, which also sets out OWCP’s obligation to use them in its adjudication
of claims for radiogenic cancer filed under Part B of the Act, and provide the factual
basis for OWCP to determine if the “probability of causation” (PoC) that an
employee’s cancer was sustained in the performance of duty is 50% or greater (i.e.,
it is “at least as likely as not” causally related to employment), as required under
section 7384n(b).
(c)
OWCP also uses HHS’s regulations when it makes the determination
required by section 7385s-4(c)(1)(A) of the Act, since those regulations provide
the factual basis for OWCP to determine if “it is at least as likely as not”
that exposure to radiation at a DOE facility or RECA section 5 facility, as
appropriate, was a significant factor in aggravating, contributing to, or
causing the employee’s radiogenic cancer claimed under Part E. For cancer claims under Part E, if the PoC is
less than 50% and the claimant alleges that the employee was exposed to
additional toxic substances, OWCP will determine if the claim is otherwise
compensable pursuant to § 30.230(d) of this part.
§
30.214 How does a claimant establish
that the employee is a member of the Special Exposure Cohort?
(a)
For purposes of establishing eligibility as a member of the Special
Exposure Cohort (SEC) under § 30.210(a)(1), the employee must have been a DOE
employee, a DOE contractor employee, or an atomic weapons employee who meets
any of the following requirements:
(1)
The employee was so employed for a number of workdays aggregating at
least 250 workdays before
(i)
Was monitored through the use of dosimetry badges for exposure at the
plant of the external parts of the employee’s body to radiation; or
(ii)
Worked in a job that had exposures comparable to a job that is or was
monitored through the use of dosimetry badges.
(2)
The employee was so employed before
(3)
The employee is a member of a group or class of employees subsequently
designated as additional members of the SEC by HHS.
(b)
For purposes of satisfying the 250 workday requirement of paragraph
(a)(1) of this section, the claimant may aggregate the days of service at more
than one gaseous diffusion plant.
(c)
Proof of employment by the DOE or a DOE contractor, or an atomic weapons
employer, for the requisite time periods set forth in paragraph (a) of this
section, may be made by the submission of any trustworthy records that, on
their face or in conjunction with other such records, establish that the
employee was so employed and the time period(s) of such employment. If the evidence shows that exposure occurred
while the employee was employed by an employer that would have to be designated
by DOE as an atomic weapons employer under section 7384l(4) of the Act to be a
covered employer, and that the employer has not been so designated, OWCP will
deny the claim on the ground that the employer is not a covered atomic weapons
employer.
(d)
Records from the following sources may be considered as evidence for
purposes of establishing employment or presence at a covered facility:
(1)
Records or documents created by any federal government agency (including
verified information submitted for security clearance), any tribal government,
or any state, county, city or local government office, agency, department, board
or other entity, or other public agency or office.
(2)
Records or documents created as a byproduct of any regularly conducted
business activity or by an entity that acted as a contractor or subcontractor
to the DOE.
§
30.215 How does a claimant establish
that the employee has sustained an injury, illness, impairment or disease as a
consequence of a diagnosed cancer?
An injury, illness, impairment or disease
sustained as a consequence of a diagnosed cancer covered by the provisions of §
30.210 must be established with a fully rationalized medical report by a
physician that shows the relationship between the injury, illness, impairment
or disease and the cancer. Neither the
fact that the injury, illness, impairment or disease manifests itself after a
diagnosis of a cancer, nor the belief of the claimant that the injury, illness,
impairment or disease was caused by the cancer, is sufficient in itself to
prove a causal relationship.
Eligibility Criteria for Claims Relating
to Chronic Silicosis Under Part B of EEOICPA
§
30.220 What are the criteria for
eligibility for benefits relating to chronic silicosis?
To establish eligibility for benefits for
chronic silicosis under Part B of EEOICPA, an employee or his or her survivor
must show that:
(a)
The employee is a civilian DOE employee, or a civilian DOE contractor
employee, who was present for a number of workdays aggregating at least 250
workdays during the mining of tunnels at a DOE facility (as defined in § 30.5(x))
located in Nevada or Alaska for tests or experiments related to an atomic
weapon, and has been diagnosed with chronic silicosis (as defined in §
30.5(j)); or
(b)
The employee has been diagnosed with an injury, illness, impairment or
disease that arose as a consequence of
the accepted chronic silicosis.
§
30.221 How does a claimant prove
exposure to silica in the performance of duty?
(a)
Proof of the employee’s employment and presence for the requisite days
during the mining of tunnels at a DOE facility located in Nevada or Alaska for
tests or experiments related to an atomic weapon may be made by the submission
of any trustworthy records that, on their face or in conjunction with other
such records, establish that the employee was so employed and present at these
sites and the time period(s) of such employment and presence.
(b)
If the evidence shows that exposure occurred while the employee was
employed and present at a facility during a time frame that is outside the
relevant time frame indicated for that facility by DOE, OWCP may request that
DOE provide additional information on the facility. OWCP will determine whether the evidence of
record supports enlarging the relevant time frame for that facility.
(c)
Records from the following sources may be considered as evidence for
purposes of establishing proof of employment or presence at a covered facility:
(1)
Records or documents created by any federal government agency (including
verified information submitted for security clearance), any tribal government,
or any state, county, city or local government office, agency, department,
board or other entity, or other public agency or office.
(2)
Records or documents created as a byproduct of any regularly conducted
business activity or by an entity that acted as a contractor or subcontractor
to the DOE.
(d)
For purposes of satisfying the 250 workday requirement of § 30.220(a),
the claimant may aggregate the days of service at more than one qualifying
site.
§
30.222 How does a claimant establish
that the employee has been diagnosed with chronic silicosis or has sustained a
consequential injury, illness, impairment or disease?
(a)
A written diagnosis of the employee’s chronic silicosis (as defined in §
30.5(j)) shall be made by a medical doctor and accompanied by one of the
following:
(1)
A chest radiograph, interpreted by an individual certified by NIOSH as a
B reader, classifying the existence of pneumoconioses of category 1/0 or
higher; or
(2)
Results from a computer assisted tomograph or other imaging technique
that are consistent with silicosis; or
(3)
Lung biopsy findings consistent with silicosis.
(b)
An injury, illness, impairment or disease sustained as a consequence of
accepted chronic silicosis covered by the provisions of § 30.220(a) must be
established with a fully rationalized medical report by a physician that shows
the relationship between the injury, illness, impairment or disease and the
accepted chronic silicosis. Neither the
fact that the injury, illness, impairment or disease manifests itself after a
diagnosis of accepted chronic silicosis, nor the belief of the claimant that
the injury, illness, impairment or disease was caused by the accepted chronic
silicosis, is sufficient in itself to prove a causal relationship.
Eligibility Criteria for Certain Uranium
Employees Under Part B of EEOICPA
§
30.225 What are the criteria for
eligibility for benefits under Part B of EEOICPA for certain uranium employees?
In order to be eligible for benefits under
this section, the claimant must establish the criteria set forth in either
paragraph (a) or paragraph (b) of this section:
(a)
The Attorney General has determined that the claimant is a covered
uranium employee who is entitled to payment of $100,000 as compensation due
under section 5 of RECA for a claim made
under that statute (there is, however, no requirement that the claimant or
surviving eligible beneficiary has actually received payment pursuant to
RECA). If a deceased employee’s survivor
has been determined to be entitled to such an award, his or her survivor(s), if
any, will only be entitled to EEOICPA compensation in accordance with section
7384u(e) of the Act.
(b)
The covered uranium employee has been diagnosed with an injury, illness,
impairment or disease that arose as a consequence of the medical condition for
which he or she was determined to be entitled to payment of $100,000 as
compensation due under section 5 of RECA.
§
30.226 How does a claimant establish
that a covered uranium employee has sustained a consequential injury, illness,
impairment or disease?
An injury, illness, impairment or disease
sustained as a consequence of a medical condition covered by the provisions of
§ 30.225(a) must be established with a fully rationalized medical report by a
physician that shows the relationship between the injury, illness, impairment
or disease and the accepted medical condition.
Neither the fact that the injury, illness, impairment or disease
manifests itself after a diagnosis of a medical condition covered by the
provisions of § 30.225(a), nor the belief of the claimant that the injury,
illness, impairment or disease was caused by such a condition, is sufficient in
itself to prove a causal relationship.
Eligibility Criteria for Other Claims Under
Part E of EEOICPA
§
30.230 What are the criteria necessary
to establish that an employee contracted a covered illness under Part E of
EEOICPA?
To establish that an employee contracted a
covered illness under Part E of the Act, the employee, or his or her survivor,
must show one of the following:
(a)
That OWCP has determined under Part B of EEOICPA that the employee is a
Department of Energy contractor employee as defined in § 30.5(w), and that he
or she has been awarded compensation under that Part of the Act for an
occupational illness;
(b)
That the Attorney General has determined that the employee is entitled
to payment of $100,000 as compensation due under section 5 of RECA for a claim
made under that statute (however, if a deceased employee’s survivor has been
determined to be entitled to such an award, his or her survivor(s), if any,
will only be entitled to benefits under Part E of EEOICPA in accordance with
section 7385s-3 of the Act);
(c)
That the Secretary of Energy has accepted a positive determination of a Physicians
Panel that the employee sustained an illness or died due to exposure to a toxic
substance at a DOE facility under former section 7385o of EEOICPA, or that the
Secretary of Energy has found significant evidence contrary to a negative
determination of a Physicians Panel; or
(d)(1)
That the employee is a Department of Energy contractor employee as
defined in § 30.5(w), or an individual who was employed in a uranium mine or
mill located in Colorado, New Mexico, Arizona, Wyoming, South Dakota,
Washington, Utah, Idaho, North Dakota, Oregon or Texas at any time during the
period from January 1, 1942 through December 31, 1971, or was employed in the
transport of uranium ore or vanadium-uranium ore from such a mine or mill
during that same period, and that he or she:
(i)
Has been diagnosed with an illness; and
(ii)
That it is at least as likely as not that exposure to a toxic substance
at a Department of Energy facility or at a RECA section 5 facility, as
appropriate, was a significant factor in aggravating, contributing to, or
causing the illness; and
(iii)
That it is at least as likely as not that the exposure to such toxic
substance was related to employment at a Department of Energy facility or a
RECA section 5 facility, as appropriate.
(2) In
making the determination under paragraph (d)(1)(ii) of this section, OWCP will
consider:
(i)
The nature, frequency and duration of exposure of the covered employee
to the substance alleged to be toxic;
(ii)
Evidence of the carcinogenic or pathogenic properties of the alleged
toxic substance to which the employee was exposed;
(iii)
An opinion of a qualified physician with expertise in treating,
diagnosing or researching the illness claimed to be caused or aggravated by the
alleged exposure; and
(iv)
Any other evidence that OWCP determines to have demonstrated relevance
to the relation between a particular toxic substance and the claimed illness.
§ 30.231
How does a claimant prove employment-related exposure to a toxic
substance at a DOE facility or a RECA section 5 facility?
To establish employment-related exposure to
a toxic substance at a Department of Energy facility or RECA section 5 facility
as required by § 30.230(d), an employee, or his or her survivor(s), must prove
that the employee was employed at such facility and that he or she was exposed
to a toxic substance in the course of that employment.
(a)
Proof of employment may be established by any
trustworthy records that, on their face or in conjunction with other such
records, establish that the employee was so employed and the time period(s) of
such employment.
(b) Proof
of exposure to a toxic substance may be established by the submission of any
appropriate document or information that is evidence that such substance was
present at the facility in which the employee was employed and that the
employee came into contact with such substance.
§ 30.232
How does a claimant establish that the employee has been diagnosed with
a covered illness, or sustained an injury, illness, impairment or disease as a
consequence of a covered illness?
(a) To establish that the employee has been
diagnosed with a covered illness as required by §
30.230(d), the employee, or his or her survivor(s), must
provide the following:
(1) The name and address of any
licensed physician who is the source of a diagnosis based upon documented
medical information that the employee has or had an illness and that the illness
may have resulted from exposure to a toxic substance while the employee was employed at a DOE facility or a RECA section 5 facility, as appropriate, and, to the extent
practicable, a copy of the diagnosis and a summary of the information upon
which the diagnosis is based; and
(2) A signed medical
release, authorizing the release of any diagnosis, medical opinion and medical
records documenting the diagnosis or opinion that the employee has or had an
illness and that the illness may have resulted from exposure
to a toxic substance while the employee was employed at a
DOE facility or RECA section 5 facility, as appropriate; and
(3) To the extent
practicable and appropriate, an occupational history obtained by a physician,
an occupational health professional, or a DOE-sponsored Former Worker Program
(if such an occupational history is not reasonably available or is inadequate, and such history is deemed by OWCP to be
needed for the fair adjudication of the claim, then OWCP may assist the claimant in developing this history); and
(4) Any other
information or materials deemed by OWCP to be necessary to provide reasonable
evidence that the employee has or had an illness that may have arisen from
exposure to a toxic substance while
employed at a DOE facility or RECA section 5 facility, as appropriate.
(b)
The employee, or his or her survivor(s), may also submit to OWCP other evidence not described in paragraph (a) of this
section showing
that
the employee has or had an illness that resulted from an exposure to a toxic substance
during the course of employment at either
a DOE facility
or a RECA section 5 facility,
as appropriate.
(c) An injury, illness,
impairment or disease sustained as a consequence of a covered illness (as
defined in § 30.5(r)) must be established with a fully rationalized medical
report by a physician that shows the relationship between the injury, illness,
impairment or disease and the covered illness.
Neither the fact that the injury, illness, impairment or disease
manifests itself after a diagnosis of a covered illness, nor the belief of the
claimant that the injury, illness, impairment or disease was caused by the
covered illness, is sufficient in itself to prove a causal relationship.
Subpart D--Adjudicatory Process
§ 30.300 What process will OWCP use to decide claims
for entitlement and to provide for administrative review of those decisions?
OWCP district offices will issue
recommended decisions with respect to claims for entitlement under Part B and/or
Part E of EEOICPA that are filed pursuant to the regulations set forth in subpart
B of this part. In circumstances where a
claim is made for more than one benefit available under Part B and/or Part E of
the Act, OWCP may issue a recommended decision on only part of that particular
claim in order to adjudicate that portion of the claim as quickly as
possible. Should this occur, OWCP will
issue one or more recommended decisions on the deferred portions of the claim
when the adjudication of those portions is completed. All recommended decisions granting and/or
denying benefits under Part B and/or Part E of the Act will be forwarded to the
Final Adjudication Branch (FAB).
Claimants will be given an opportunity to object to all or part of the
recommended decision before the FAB. The
FAB will consider objections filed by a claimant and conduct a hearing, if
requested to do so by the claimant, before issuing a final decision on the
claim for entitlement.
§ 30.301
May subpoenas be issued for witnesses and documents in connection with a
claim under Part B of EEOICPA?
(a) In connection with the
adjudication of a claim under Part B of EEOICPA, an OWCP district office and/or
a FAB reviewer may, at their own initiative, issue subpoenas for the attendance
and testimony of witnesses, and for the production of books, electronic records,
correspondence, papers or other relevant documents. Subpoenas will only be issued for documents if
they are relevant and cannot be obtained by other means, and for witnesses only
where oral testimony is the best way to ascertain the facts.
(b) A claimant may also request a
subpoena in connection with his or her claim under Part B of the Act, but such
request may only be made to a FAB reviewer.
No subpoenas will be issued at the request of the claimant under any
other portion of the claims process. The
decision to grant or deny such request is within the discretion of the FAB
reviewer. To request a subpoena under
this section, the requestor must:
(1) Submit the request in writing and send it to
the FAB reviewer as early as possible, but no later than 30 days (as evidenced
by postmark, electronic marker or other objective date mark) after the date of
the original hearing request;
(2) Explain why the testimony or evidence is
directly relevant and material to the issues in the case; and
(3) Establish that a subpoena is
the best method or opportunity to obtain such evidence because there are no
other means by which the documents or testimony could have been obtained.
(c) No subpoena will be issued for attendance of
employees of OWCP acting in their official capacities as decision-makers or
policy administrators. For hearings
taking the form of a review of the written record, no subpoena for the
appearance of witnesses will be considered.
(d) The FAB reviewer will issue the subpoena under
his or her own name. It may be served in
person or by certified mail, return receipt requested, addressed to the person
to be served at his or her last known principal place of business or
residence. A decision to deny a subpoena
requested by a claimant can only be challenged as part of a request for
reconsideration of any adverse decision of the FAB which results from the
hearing.
§ 30.302
Who pays the costs associated with subpoenas?
(a) Witnesses who are not employees or former
employees of the federal government shall be paid the same fees and mileage as
paid for like services in the District Court of the
(b) Where OWCP asked that the witness submit
evidence into the case record or asked that the witness attend, OWCP shall pay
the fees and mileage. Where the claimant
asked for the subpoena, and where the witness submitted evidence into the
record at the request of the claimant, the claimant shall pay the fees and
mileage.
§ 30.303
What information may OWCP request in connection with a claim under Part
E of EEOICPA?
At any
time during the course of development of a claim for benefits under Part E,
OWCP may determine that it needs relevant information to adjudicate the
claim. When this occurs, and at the request of OWCP, DOE and/or any contractor who
employed a Department of Energy contractor employee must provide to OWCP
information or documents in response to the request in connection with a claim
under Part E of EEOICPA.
(a) The party to whom the request is made must
respond to OWCP within 60
days of the request with either:
(1) The
requested information or documents;
or
(2)
A
sworn statement that a good faith search for the requested information or
documents was conducted,
and that the information or
documents could not be located.
(b) DOE and/or the
DOE contractor who
employed a Department of Energy contractor employee must
query third parties under its control to acquire the requested information
or documents.
(c) In providing the requested information
or documents, DOE and/or the
DOE contractor who employed a DOE contractor
employee must preserve the current organization of the requested information
or documents, and must provide such description and
indexing of the requested information or documents as
OWCP considers appropriate
to facilitate their use by OWCP.
(d) Information or document requests may include,
but are not limited to, requests for records, files and other data, whether
paper, electronic, imaged or otherwise, developed, acquired or maintained by DOE
or the DOE contractor who employed
a DOE contractor employee. Such
information or documents may include records, files and data on facility
industrial hygiene, employment of individuals or groups, exposure and medical
records, and claims applications.
Recommended Decisions on Claims
§
30.305 How does OWCP determine
entitlement to EEOICPA compensation?
(a)
In reaching a recommended decision with respect to EEOICPA compensation,
OWCP considers the claim presented by the claimant, the factual and medical
evidence of record, the dose reconstruction report calculated by HHS (if any),
any report submitted by DOE and the results of such investigation as OWCP may
deem necessary.
(b)
The OWCP claims staff applies the law, the regulations and its procedures
when it evaluates the medical evidence and the facts as reported or obtained
upon investigation.
§
30.306 What does the recommended
decision contain?
The recommended decision shall contain
findings of fact and conclusions of law.
The recommended decision may accept or reject the claim in its entirety,
or it may accept or reject a portion of the claim presented. It is accompanied by a notice of the
claimant’s right to file objections with, and request a hearing before, the
FAB.
§
30.307 To whom is the recommended
decision sent?
(a)
A copy of the recommended decision will be mailed to the claimant’s last
known address. However, if the claimant has a designated representative before
OWCP, the copy of the recommended decision will be mailed to the
representative. Notification to either
the claimant or the representative will be considered notification to both
parties.
(b)
At the same time it issues a recommended decision on a claim, the OWCP
district office will forward the record of such claim to the FAB. Any new evidence submitted to the district
office following the issuance of the recommended decision will also be
forwarded to the FAB for consideration.
Hearings and Final Decisions on Claims
§
30.310 What must the claimant do if he
or she objects to the recommended decision or wants to request a hearing?
(a) Within 60 days from the date
the recommended decision is issued, the claimant must state, in writing,
whether he or she objects to any of the findings of fact and/or conclusions of
law contained in such decision, including HHS’s reconstruction of the radiation
dose to which the employee was exposed (if any), and whether a hearing is
desired. This written statement should
be filed with the FAB at the address indicated in the notice accompanying the
recommended decision.
(b) For purposes of determining
whether the written statement referred to in paragraph (a) of this section has
been timely filed with the FAB, the statement will be considered to be “filed”
on the date that the claimant mails it to the FAB, as determined by postmark,
or on the date that such written statement is actually received by the FAB,
whichever is the earliest determinable date.
§
30.311 What happens if the claimant does
not object to the recommended decision or request a hearing within 60 days?
(a)
If the claimant does not file a written statement that objects to the
recommended decision and/or requests a hearing within the period of time
allotted in § 30.310, the FAB may issue a final decision accepting the
recommendation of the district office as provided in § 30.316.
(b)
If the recommended decision accepts all or part of a claim for
compensation, the FAB may issue a final decision at any time after receiving
written notice from the claimant that he or she waives any objection to all or
part of the recommended decision.
§
30.312 What will the FAB do if the
claimant objects to the recommended decision but does not request a hearing?
If the claimant files a written statement
that objects to the recommended decision within the period of time allotted in
§ 30.310 but does not request a hearing, the FAB will consider any objections
by means of a review of the written record.
If the claimant only objects to part of the recommended decision, the
FAB may issue a final decision accepting the remaining part of the
recommendation of the district office without first reviewing the written
record (see § 30.316).
§
30.313 How is a review of the written
record conducted?
(a) The
FAB reviewer will consider the written record forwarded by the district office
and any additional evidence and/or argument submitted by the claimant. The reviewer may also conduct whatever
investigation is deemed necessary.
(b)
The claimant should submit, with his or her written statement that
objects to the recommended decision, all evidence or argument that he or she
wants to present to the reviewer.
However, evidence or argument may be submitted at any time up to the
date specified by the reviewer for the submission of such evidence or argument.
(c)
Any objection that is not presented to the FAB reviewer, including any
objection to HHS’s reconstruction of the radiation dose to which the employee
was exposed (if any), whether or not the pertinent issue was previously
presented to the district office, is deemed waived for all purposes.
§
30.314 How is a hearing conducted?
(a)
The FAB reviewer retains complete discretion to set the time and place
of the hearing, including the amount of time allotted for the hearing,
considering the issues to be resolved.
At the discretion of the reviewer, the hearing may be conducted by
telephone or teleconference. As part of
the hearing process, the FAB reviewer will consider the written record forwarded
by the district office and any additional evidence and/or argument submitted by
the claimant. The reviewer may also
conduct whatever investigation is deemed necessary.
(1)
The FAB reviewer will try to set the hearing at a place that is within commuting
distance of the claimant’s residence, but will not be able to do so in all
cases. Therefore, for reasons of
economy, the claimant may be required to travel a roundtrip distance of up to
200 miles to attend the hearing.
(2)
In unusual circumstances, the FAB reviewer may set a place for the
hearing that is more than 200 miles roundtrip from the claimant’s
residence. However, in that situation,
OWCP will reimburse the claimant for reasonable and necessary travel expenses
incurred to attend the hearing if he or she submits a written reimbursement
request that documents such expenses.
(b)
Unless otherwise directed in writing by the claimant, the FAB reviewer
will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled hearing date. If the claimant only objects to part of the
recommended decision, the FAB reviewer may issue a final decision accepting the
remaining part of the recommendation of the district office without first
holding a hearing (see § 30.316). Any
objection that is not presented to the FAB reviewer, including any objection to
HHS’s reconstruction of the radiation dose to which the employee was exposed
(if any), whether or not the pertinent issue was previously presented to the
district office, is deemed waived for all purposes.
(c)
The hearing is an informal process, and the reviewer is not bound by
common law or statutory rules of evidence, or by technical or formal rules of
procedure. The reviewer may conduct the
hearing in such manner as to best ascertain the rights of the claimant. During the hearing process, the claimant may
state his or her arguments and present new written evidence and/or testimony in
support of the claim.
(d)
Testimony at hearings is recorded, then transcribed and placed in the
record. Oral testimony shall be made
under oath.
(e)
The FAB reviewer will furnish a transcript of the hearing to the
claimant, who has 20 days from the date it is sent to submit any comments to
the reviewer.
(f)
The claimant will have 30 days after the hearing is held to submit
additional evidence or argument, unless the reviewer, in his or her sole
discretion, grants an extension. Only
one such extension may be granted.
(g) The
reviewer determines the conduct of the hearing and may terminate the hearing at
any time he or she determines that all relevant evidence has been obtained, or
because of misbehavior on the part of the claimant and/or representative at or
near the place of the oral presentation.
§
30.315 May a claimant postpone a
hearing?
(a)
The FAB will entertain any reasonable request for scheduling the time
and place of the hearing, but such requests should be made at the time that the
hearing is requested. Scheduling is at
the discretion of the FAB, and is not reviewable. In most instances, once the hearing has been
scheduled and appropriate written notice has been mailed, it cannot be
postponed at the claimant’s request for any reason except those stated in
paragraph (b) of this section, unless the FAB reviewer can reschedule the
hearing on the same docket (that is, during the same hearing trip). If a request to postpone a scheduled hearing
does not meet one of the tests of paragraph (b) of this section and cannot be
accommodated on the same docket, no further opportunity for a hearing will be
provided. Instead, the FAB will consider
the claimant’s objections by means of a review of the written record. In the alternative, a teleconference may be
substituted for the hearing at the discretion of the reviewer.
(b) Where the claimant has a medical
reason that prevents attendance at the hearing, or where the death or illness
of the claimant’s parent, spouse, or child prevents the claimant from attending
the hearing as scheduled, a postponement may be granted in the discretion of
the FAB if the claimant provides at least 24 hours notice and a reasonable
explanation supporting his or her inability to attend the scheduled hearing.
(c)
At any time after requesting a hearing, the claimant can request a
change to a review of the written record by making a written request to the
FAB. Once such a change is made, no
further opportunity for a hearing will be provided.
§
30.316 How does the FAB issue a final decision
on a claim?
(a)
If the claimant does not file a written statement that objects to the
recommended decision and/or requests a hearing within the period of time
allotted in § 30.310, or if the claimant waives any objections to all or part
of the recommended decision, the FAB may issue a final decision accepting the
recommendation of the district office, either in whole or in part (see §§
30.311, 30.312 and 30.314(b)).
(b)
If the claimant objects to all or part of the recommended decision, the
FAB reviewer will issue a final decision on the claim after either the hearing
or the review of the written record, and after completing such further
development of the case as he or she may deem necessary.
(c)
Any recommended decision (or part thereof) that is pending either a
hearing or a review of the written record for more than one year from the date
the FAB received the written statement that objected to the recommended
decision and/or requested a hearing shall be considered a final decision of the
FAB on the one-year anniversary of such date.
Any recommended decision described in § 30.311 that is pending at the
FAB for more than one year from the date that the period of time described in §
30.310 expired shall be considered a final decision of the FAB on the one-year
anniversary of such date.
(d) The decision of the FAB,
whether issued pursuant to paragraph (a), (b) or (c) of this section, shall be
final upon the date of issuance of such decision, unless a timely request for
reconsideration under § 30.319 has been filed.
(e)
A copy of the final decision of the FAB will be mailed to the claimant’s
last known address. However, if the
claimant has a designated representative before OWCP, the copy of the final
decision will be mailed to the representative.
Notification to either the claimant or the representative will be
considered notification to both parties.
§
30.317 Can the FAB request a further
response from the claimant or return a claim to the district office?
At any time before the issuance of its
final decision, the FAB may request that the claimant submit additional
evidence or argument, or return the claim to the district office for further
development and/or issuance of a new recommended decision without issuing a final
decision, whether or not requested to do so by the claimant.
§
30.318 Can the FAB consider objections
to HHS’s reconstruction of a radiation dose or to the guidelines OWCP uses to
determine if a claimed cancer was at least as likely as not related to employment?
(a)
If the claimant objects to HHS’s reconstruction of the radiation dose to
which the employee was exposed, the FAB will evaluate the factual findings upon
which HHS based its dose reconstruction.
If these factual findings do not appear to be supported by substantial
evidence, the claim will be returned to the district office for referral to HHS
for further consideration.
(b)
The methodology used by HHS in arriving at reasonable estimates of the
radiation doses received by an employee, established by regulations issued by
HHS at 42 CFR part 82, is binding on the FAB.
The FAB reviewer may determine, however, that objections concerning the
application of that methodology should be considered by HHS and may return the
case to the district office for referral to HHS for such consideration.
(c)
The methodology that OWCP uses to determine if a claimed cancer was at
least as likely as not related to employment at a DOE facility, an atomic
weapons employer facility, or a RECA section 5 facility, established by
regulations issued by HHS at 42 CFR part 81, is also binding on the FAB (see §
30.213). However, since OWCP applies this
methodology when it makes these determinations, the FAB reviewer may consider objections
to the manner in which OWCP applied HHS’s regulatory guidelines.
§
30.319 May a claimant request
reconsideration of a final decision of the FAB?
(a)
A claimant may request reconsideration of a final decision of the FAB by
filing a written request with the FAB within 30 days from the date of issuance
of such decision. If a timely request
for reconsideration is made, the decision in question will no longer be
considered “final” under § 30.316(d).
(b) For purposes of determining
whether the written request referred to in paragraph (a) of this section has
been timely filed with the FAB, the request will be considered to be “filed” on
the date that the claimant mails it to the FAB, as determined by postmark, or
on the date that such written request is actually received by the FAB,
whichever is the earliest determinable date.
(c) A
hearing is not available as part of the reconsideration process. If the FAB grants the request for
reconsideration, it will consider the written record of the claim again and
issue a new final decision on the claim. A new final decision that is issued after the
FAB grants a request for reconsideration will be “final” upon the date of
issuance of such new decision.
(1) Instead
of issuing a new final decision after granting a request for reconsideration,
the FAB may return the claim to the district office for further development as
provided in § 30.317.
(2) If
the FAB denies the request for reconsideration, the FAB decision that formed
the basis for the request will be considered “final” upon the date the request
is denied, and no further requests for reconsideration of that particular final
decision of the FAB will be entertained.
(d)
A claimant may not seek judicial review of a decision on his or her
claim under EEOICPA until OWCP’s
decision on the claim is final pursuant to either § 30.316(d) (for claims in
which no request for reconsideration was filed with the FAB) or paragraph (c)
of this section (for claims in which a request for reconsideration was filed
with the FAB).
Reopening
Claims
§ 30.320
Can a claim be reopened after the FAB has issued a final decision?
(a) At any time after the FAB has
issued a final decision pursuant to § 30.316, and without regard to whether new
evidence or information is presented or obtained, the Director for Energy
Employees Occupational Illness Compensation may reopen a claim and return it to
the FAB for issuance of a new final decision, or to the district office for
such further development as may be necessary, to be followed by a new
recommended decision. The Director may
also vacate any other type of decision issued by the FAB.
(b) At any time after the FAB has
issued a final decision pursuant to § 30.316, a claimant may file a written
request that the Director for Energy Employees Occupational Illness
Compensation reopen his or her claim, provided that the claimant also submits
new evidence of either covered employment or exposure to a toxic substance, or
identifies either a change in the PoC guidelines, a change in the dose
reconstruction methods or an addition of a class of employees to the Special
Exposure Cohort.
(1) If the Director concludes
that the evidence submitted or matter identified in support of the claimant’s
request is material to the claim, the Director will reopen the claim and return
it to the district office for such further development as may be necessary, to
be followed by a new recommended decision.
(2) New evidence of a medical
condition described in subpart C of these regulations is not sufficient to
support a written request to reopen a claim for such a condition under
paragraph (b) of this section.
(c) The decision whether or not
to reopen a claim under this section is solely within the discretion of the
Director for Energy Employees Occupational Illness Compensation and is not
reviewable. If the Director reopens a
claim pursuant to paragraphs (a) or (b) of this section and returns it to the
district office, the resulting new recommended decision will be subject to the
adjudicatory process described in this subpart.
However, neither the district office nor the FAB can consider any
objection concerning the Director’s decision to reopen a claim under this
section.
Subpart E--Medical and Related Benefits
Medical Treatment and Related Issues
§ 30.400 What are the basic rules for obtaining
medical treatment?
(a)
A covered Part B employee or a covered Part E employee who fits into at
least one of the compensable claim categories described in subpart C of this
part is entitled to receive all medical services, appliances or supplies that a
qualified physician prescribes or recommends and that OWCP considers necessary
to treat his or her occupational illness or covered illness, retroactive to the
date the claim for benefits for that occupational illness or covered illness under
Part B or Part E of EEOICPA was filed.
The employee need not be disabled to receive such treatment. When a survivor receives payment, OWCP will
pay for such treatment if the employee died before the claim was paid. If there is any doubt as to whether a
specific service, appliance or supply is necessary to treat the occupational
illness or covered illness, the employee should consult OWCP prior to obtaining
it.
(b)
The decision of OWCP that medical benefits provided under paragraph (a)
of this section are not necessary to treat an occupational illness or covered
illness is final when issued and is not subject to the adjudicatory process
described in subpart D of this part.
(c)
Any qualified physician or qualified hospital may provide medical
services, appliances and supplies to the covered Part B employee or the covered
Part E employee. A qualified provider of
medical support services may also furnish appropriate services, appliances, and
supplies. OWCP may apply a test of
cost-effectiveness when it decides if appliances and supplies are necessary to
treat an occupational illness or covered illness. With respect to prescribed medications, OWCP
may require the use of generic equivalents where they are available.
§
30.401 What are the special rules for
the services of chiropractors?
(a)
The services of chiropractors that may be reimbursed by OWCP are limited
to treatment to correct a spinal subluxation.
The costs of physical and related laboratory tests performed by or
required by a chiropractor to diagnose such a subluxation are also payable.
(b)
A diagnosis of spinal subluxation as demonstrated by x-ray to exist must
appear in the chiropractor’s report before OWCP can consider payment of a
chiropractor’s bill.
(c)
A chiropractor may interpret his or her x-rays to the same extent as any
other physician. To be given any weight,
the medical report must state that x-rays support the finding of spinal
subluxation. OWCP will not necessarily
require submission of the x-ray, or a report of the x-ray, but the report must
be available for submission on request.
(d)
A chiropractor may also provide services in the nature of physical
therapy under the direction of a qualified physician.
§
30.402 What are the special rules for
the services of clinical psychologists?
A clinical psychologist may serve as a
physician within the scope of his or her practice as defined by state law. Therefore, a clinical psychologist may not
serve as a physician for conditions that include a physical component unless
the applicable state law allows clinical psychologists to treat physical
conditions. A clinical psychologist may
also perform testing, evaluation, and other services under the direction of a
qualified physician.
§
30.403 Will OWCP pay for the services of
an attendant?
OWCP will authorize payment for personal
care services under section 7384t of the Act, whether or not such care includes
medical services, so long as the personal care services have been determined to
be medically necessary and are provided by a home health aide, licensed
practical nurse, or similarly trained individual. The decision of OWCP that personal care
services are not medically necessary is final when issued and is not subject to
the adjudicatory process described in subpart D of this part.
§
30.404 Will OWCP pay for transportation
to obtain medical treatment?
(a)
The employee is entitled to reimbursement for reasonable and necessary
expenses, including transportation, incident to obtaining authorized medical
services, appliances or supplies. To
determine what is a reasonable distance to travel, OWCP will consider the
availability of services, the employee’s condition, and the means of
transportation. Generally, a roundtrip
distance of up to 200 miles is considered a reasonable distance to travel.
(b)
If travel of more than 200 miles is contemplated, or air transportation
or overnight accommodations will be needed, the employee must submit a written
request to OWCP for prior authorization with information describing the
circumstances and necessity for such travel expenses. OWCP will approve the request if it
determines that the travel expenses are reasonable and necessary, and are
incident to obtaining authorized medical services, appliances or supplies. Requests for travel expenses that are often
approved include those resulting from referrals to a specialist for further
medical treatment, and those involving air transportation of an employee who
lives in a remote geographical area with limited local medical services.
(c)
The decision of OWCP that requested travel expenses are either not
reasonable or necessary, or are not incident to obtaining authorized medical
services, appliances or supplies, is final when issued and is not subject to
the adjudicatory process described in subpart D of this part.
(d)
The standard form designated for medical travel refund requests is Form
OWCP-957 and must be used to seek reimbursement under this section. This form can be obtained from OWCP.
§
30.405 After selecting a treating
physician, may an employee choose to be treated by another physician instead?
(a)
OWCP will provide the employee with an opportunity to designate a
treating physician when it accepts the claim.
When the physician originally selected to provide treatment for an
occupational illness or a covered illness refers the employee to a specialist
for further medical care, the employee need not consult OWCP for approval. In all other instances, however, the employee
must submit a written request to OWCP with his or her reasons for desiring a
change of physician.
(b)
OWCP will approve the request if it determines that the reasons
submitted are sufficient. Requests that
are often approved include those for transfer of care from a general
practitioner to a physician who specializes in treating the occupational
illnesses or covered illnesses covered by EEOICPA, or the need for a new
physician when an employee has moved.
(c) The decision of OWCP that insufficient
reasons for a change of physician have been submitted is final when issued and
is not subject to the adjudicatory process described in subpart D of this part.
§
30.406 Are there any exceptions to these
procedures for obtaining medical care?
In cases involving emergencies or unusual
circumstances, OWCP may authorize treatment in a manner other than as stated in
this subpart.
Directed Medical Examinations
§
30.410 Can OWCP require an employee to
be examined by another physician?
(a)
OWCP sometimes needs a second opinion from a medical specialist. The employee must submit to examination by a
qualified physician as often and at such times and places as OWCP considers
reasonably necessary. Also, OWCP may
send a case file for second opinion review where an actual examination is not
needed, or where the employee is deceased.
(b)
If the initial examination is disrupted by someone accompanying the
employee, OWCP will schedule another examination with a different qualified
physician. The employee will not be
entitled to have anyone else present at the subsequent examination unless OWCP
decides that exceptional circumstances exist.
For example, where a hearing-impaired employee needs an interpreter, the
presence of an interpreter would be allowed.
§
30.411 What happens if the opinion of
the physician selected by OWCP differs from the opinion of the physician
selected by the employee?
(a)
If one medical opinion holds more probative value than the other, OWCP
will base its determination of coverage on the medical opinion with the
greatest probative value. A difference
in medical opinion sufficient to be considered a conflict only occurs when two
reports of virtually equal weight and rationale reach opposing conclusions.
(b)
If a conflict exists between the medical opinion of the employee’s
physician and the medical opinion of a second opinion physician, an OWCP
medical adviser or consultant, or a physician submitting an impairment evaluation
that meets the criteria set out in § 30.905 of this part, OWCP shall appoint a
third physician to make an examination.
This is called a referee examination.
OWCP will select a physician who is qualified in the appropriate
specialty and who has had no prior connection with the case. Also, a case file may be sent for referee
medical review where there is no need for an actual examination, or where the
employee is deceased.
(c)
If the initial referee examination is disrupted by someone accompanying
the employee, OWCP will schedule another examination with a different qualified
physician. The employee will not be
entitled to have anyone else present at the subsequent referee examination
unless OWCP decides that exceptional circumstances exist. For example, where a hearing-impaired
employee needs an interpreter, the presence of an interpreter would be allowed.
§
30.412 Who pays for second opinion and
referee examinations?
OWCP will pay second opinion and referee
medical specialists directly. OWCP will
also reimburse the employee for all necessary and reasonable expenses incident
to such an examination, including transportation costs and actual wages the
employee lost for the time needed to submit to an examination required by OWCP.
Medical Reports
§
30.415 What are the requirements for
medical reports?
In general, medical reports from the
employee’s attending physician should include the following:
(a)
Dates of examination and treatment;
(b)
History given by the employee;
(c) Physical findings;
(d)
Results of diagnostic tests;
(e)
Diagnosis;
(f)
Course of treatment;
(g)
A description of any other conditions found due to the claimed
occupational illness or covered illness;
(h)
The treatment given or recommended for the claimed occupational illness
or covered illness; and
(i)
All other material findings.
§
30.416 How and when should medical
reports be submitted?
(a)
The initial medical report (and any subsequent reports) should be made
in narrative form on the physician’s letterhead stationery. The physician should use the Form EE-7 as a
guide for the preparation of his or her initial medical report in support of a
claim under Part B and/or Part E of EEOICPA.
The report should bear the physician’s signature or signature
stamp. OWCP may require an original
signature on the report.
(b)
The report shall be submitted directly to OWCP as soon as possible after
medical examination or treatment is received, either by the employee or the
physician.
§
30.417 What additional medical
information may OWCP require to support continuing payment of benefits?
In all cases requiring hospital treatment
or prolonged care, OWCP will request detailed narrative reports from the
attending physician at periodic intervals.
The physician will be asked to describe continuing medical treatment for
the occupational illness or covered illness accepted by OWCP, a prognosis, and
the physician’s opinion as to the continuing causal relationship between the
need for additional treatment and the occupational illness or covered illness.
Medical Bills
§ 30.420 How should medical bills and reimbursement
requests be submitted?
Usually, medical providers submit their
bills directly for processing. The rules
for submitting and processing provider bills and reimbursement requests are
stated in subpart H of this part. An
employee requesting reimbursement for out-of-pocket medical expenses must
submit a Form OWCP-915 and meet the requirements described in § 30.702.
§ 30.421 What are the time frames for submitting bills
and reimbursement requests?
To be considered for payment, bills and
reimbursement requests must be submitted by the end of the calendar year after
the year when the expense was incurred, or by the end of the calendar year
after the year when OWCP first accepted the claim as compensable under subpart
D of this part, whichever is later.
§ 30.422 If an employee is only partially reimbursed
for a medical expense, must the provider refund the balance of the amount paid
to the employee?
(a)
The OWCP fee schedule sets maximum limits on the amounts payable for
many services. The employee may be only
partially reimbursed for out-of-pocket medical expenses because the amount he
or she paid to the medical provider for a service exceeds the maximum allowable
charge set by the OWCP fee schedule.
(b)
If this happens, the employee will be advised of the maximum allowable
charge for the service in question and of his or her responsibility to ask the
provider to refund to the employee, or credit to the employee’s account, the
amount he or she paid that exceeds the maximum allowable charge. The provider that the employee paid, but not
the employee, may request reconsideration of the fee determination as set forth
in § 30.712.
(c)
If the provider does not refund to the employee or credit to his or her
account the amount of money paid in excess of the charge that OWCP allows, the
employee should submit documentation of the attempt to obtain such refund or
credit to OWCP. OWCP may authorize
reasonable reimbursement to the employee after reviewing the facts and
circumstances of the case.
Subpart F--Survivors; Payments and
Offsets; Overpayments
Survivors
§
30.500 What special statutory
definitions apply to survivors under EEOICPA?
(a) For
the purposes of paying compensation to survivors under both Parts B and E
of EEOICPA, OWCP will use the following
definitions:
(1) Surviving
spouse means the wife or husband
of a deceased covered Part B employee or deceased covered Part E employee who
was married to that individual for the 365 consecutive days immediately prior
to the death of that individual.
(2) Child
or children includes a
recognized natural child of a deceased covered Part B employee or deceased covered
Part E employee, a stepchild who lived with that individual in a regular
parent-child relationship, and an adopted child of that individual. However, to be a “covered” child under Part E
only, such child must have been, as of the date of the deceased covered Part E
employee’s death, either under the age of 18 years, or under the age of 23
years and a full-time student who was continuously enrolled in one or more
educational institutions since attaining the age of 18 years, or any age and incapable
of self-support.
(b)
For the purposes of paying compensation to survivors only under Part B
of EEOICPA, OWCP will use the following additional
definitions:
(1) Parent includes fathers and mothers of a
deceased covered Part B employee through adoption.
(2) Grandchild means a child of a child of a deceased covered
Part B employee.
(3) Grandparent
means a parent of a parent of a deceased covered Part B employee.
§
30.501 What order of precedence will OWCP
use to determine which survivors are entitled to receive compensation under
EEOICPA?
(a)
Under Part B of the Act, if OWCP determines that a survivor or survivors
are entitled to receive compensation under EEOICPA because a covered Part B
employee who would otherwise have been entitled to benefits is deceased, that
compensation will be disbursed as follows, subject to the qualifications set
forth in § 30.5(gg)(3) of these regulations:
(1)
If there is a surviving spouse, the compensation shall be paid to that
individual.
(2) If there is no surviving spouse, the
compensation shall be paid in equal shares to all children of the deceased covered
Part B employee.
(3) If there is no surviving spouse and no
children, the compensation shall be paid in equal shares to the parents of the
deceased covered Part B employee.
(4) If there is no surviving spouse, no children
and no parents, the compensation shall be paid in equal shares to all
grandchildren of the deceased covered Part B employee.
(5) If there is no surviving spouse, no children,
no parents and no grandchildren, the compensation shall be paid in equal shares
to the grandparents of the deceased covered Part B employee.
(6) Notwithstanding paragraphs (a)(1) through
(a)(5) of this section, if there is a surviving spouse and at least one child
of the deceased covered Part B employee who is a minor at the time of payment
and who is not a recognized natural child or adopted child of such surviving
spouse, half of the compensation shall be paid to the surviving spouse, and the
other half of the compensation shall be paid in equal shares to each child of
the deceased covered Part B employee who is a minor at the time of payment.
(b)
Under Part E of the Act, if OWCP determines that a survivor or survivors
are entitled to receive compensation under EEOICPA because a covered Part E
employee who would otherwise have been entitled to benefits is deceased, that
compensation will be disbursed as follows, subject to the qualifications set
forth in § 30.5(gg)(3) of these regulations:
(1)
If there is a surviving spouse, the compensation shall be paid to that
individual.
(2) If there is no surviving
spouse, the compensation shall be paid in equal shares to all “covered” children
of the deceased covered Part E employee.
(3)
Notwithstanding paragraphs (b)(1) and (b)(2) of this section, if there is
a surviving spouse and at least one “covered” child of the deceased covered Part
E employee who is living at the time of payment and who is not a recognized
natural child or adopted child of such surviving spouse, then half of such payment shall be made to such surviving spouse,
and the other half of such payment shall be made in equal shares to each “covered”
child of the employee who is living at the time of payment.
§
30.502 When is entitlement for survivors
determined for purposes of EEOICPA?
Entitlement to any lump-sum payment for
survivors under EEOICPA, other than for “covered” children under Part E, will
be determined as of the time OWCP makes such a payment. As noted in § 30.500(a)(2) of these
regulations, a child of a deceased Part E employee will only qualify as a “covered”
child of that individual if he or she satisfied one of the additional statutory
criteria for a “covered” child as of the date of the deceased Part E employee’s
death.
Payment of Claims and Offset for Certain
Payments
§
30.505 What procedures will OWCP follow
before it pays any compensation?
(a)
In cases involving the approval of a claim, whether in whole or in part,
OWCP shall take all necessary steps to determine the amount of any offset or
coordination of EEOICPA benefits before paying any benefits, and to verify the
identity of the covered Part B employee, the covered Part E employee, or the
eligible surviving beneficiary or beneficiaries. To perform these tasks, OWCP may conduct any
investigation, require any claimant to provide or execute any affidavit, record
or document, or authorize the release of any information as OWCP deems necessary
to ensure that the compensation payment is made in the correct amount and to
the correct person or persons. OWCP
shall also require every claimant under Part B of the Act to execute and
provide any necessary affidavit described in § 30.620 of these regulations. Should a claimant fail or refuse to execute
an affidavit or release of information, or fail or refuse to provide a
requested document or record or to provide access to information, such failure
or refusal may be deemed to be a rejection of the payment, unless the claimant
does not have and cannot obtain the legal authority to provide, release, or
authorize access to the required information, records, or documents.
(b)
To determine the amount of any offset, OWCP shall require the covered
Part B employee, covered Part E employee or each eligible surviving beneficiary
filing a claim under this part to execute and provide an affidavit (or
declaration made under oath on Form EE-1 or EE-2) reporting the amount of any
payment made pursuant to a final judgment or settlement in litigation seeking
damages for any occupational illness or covered illness for which benefits are
payable under EEOICPA. Even if someone
other than the covered Part B employee or the covered Part E employee receives
a payment pursuant to a final judgment or settlement in litigation seeking
damages for any occupational illness or covered illness for which benefits are
payable under EEOICPA (e.g., the surviving spouse of a deceased covered
Part B employee or a deceased covered Part E employee), the receipt of any such
payment must be reported since it may constitute a payment solely for an
occupational illness or covered illness for which benefits are payable under
EEOICPA.
(1)
For the purposes of this paragraph (b) only, “litigation seeking
damages” refers to any request or demand for money by the covered Part B
employee or the covered Part E employee, or by another individual if the
covered Part B employee or the covered Part E employee is deceased, made or
sought in a civil action or in anticipation of the filing of a civil action,
for any occupational illness or covered illness for which benefits are payable
under EEOICPA. This term does not also
include any request or demand for money made or sought pursuant to a life insurance
or health insurance contract, or any request or demand for money made or sought
by an individual other than the covered Part B employee or the covered Part E
employee in that individual’s own right (e.g., a spouse’s claim for loss
of consortium), or any request or demand for money made or sought by the
covered Part B employee or the covered Part E employee (or the estate of a
deceased covered Part B employee or deceased covered Part E employee) not for
any occupational illness or covered illness for which benefits are payable
under the EEOICPA (e.g., a covered Part B employee’s or a covered Part E
employee’s claim for damage to real or personal property).
(2)
If a payment has been made pursuant to a final judgment or settlement in
litigation seeking damages, OWCP shall subtract a portion of the dollar amount
of such payment from the benefit payments to be made under EEOICPA. OWCP will calculate the amount to be
subtracted from the benefit payments in the following manner:
(i)
OWCP will first determine the value of the payment made pursuant to
either a final judgment or settlement in litigation seeking damages by adding
the dollar amount of any monetary damages (excluding contingent awards) and any
medical expenses for treatment provided on or after the date the covered Part B
employee or the covered Part E employee filed a claim for EEOICPA benefits that
were paid for under the final judgment or settlement. In the event that these payments include a
“structured” settlement (where a party
makes an initial cash payment and also arranges, usually through the purchase
of an annuity, for payments in the future), OWCP will usually accept the cost
of the annuity to the purchaser as the dollar amount of the right to receive
the future payments.
(ii)
OWCP will then make certain deductions from the above dollar amount to
arrive at the dollar amount to be subtracted from any unpaid EEOICPA
benefits. Allowable deductions consist
of attorney’s fees OWCP deems reasonable, and itemized costs of suit (out-of-pocket
expenditures not part of the normal overhead of a law firm’s operation like
filing fees, travel expenses, witness fees, and court reporter costs for
transcripts) provided that adequate supporting documentation is submitted to
OWCP.
(iii)
The EEOICPA benefits that will be reduced will consist of any unpaid
lump-sum payments payable in the future and medical benefits payable in the
future. In those cases where it has not
yet paid EEOICPA benefits, OWCP will reduce such benefits on a dollar-for-dollar
basis, beginning with the lump-sum payments first. If the amount to be subtracted exceeds the
lump-sum payments, OWCP will reduce ongoing EEOICPA medical benefits payable in
the future by the amount of any remaining surplus. This means that OWCP will apply the amount it
would otherwise pay to reimburse the covered Part B employee or the covered
Part E employee for any ongoing EEOICPA medical treatment to the remaining
surplus until it is absorbed. In addition
to this reduction of ongoing EEOICPA medical benefits, OWCP will not be the
first payer for any medical expenses that are the responsibility of another
party (who will instead be the first payer) as part of a final judgment or
settlement in litigation seeking damages.
(3)
The above reduction of EEOICPA benefits will not occur if an EEOICPA
claimant has had his or her workers’ compensation benefits or award under
section 5 of RECA reduced by the full amount of a payment made pursuant to a
final judgment or settlement in litigation seeking damages. The above reduction will also not occur if an
EEOICPA claimant’s prior payment of EEOICPA benefits was offset to reflect the
full amount of a payment made pursuant to a final judgment or settlement in litigation
seeking damages. In those situations,
OWCP will not reduce currently payable EEOICPA benefits by the same amount (but
will reduce those benefits by the amount of any surplus final judgment or
settlement payment that remains).
(c)
Except as provided in § 30.506(b) of these regulations, when OWCP has
verified the identity of every claimant who is entitled to the compensation
payment, or to a share of the compensation payment, and has determined the
correct amount of the payment or the share of the payment, OWCP shall notify
every claimant, every duly
appointed guardian or conservator of a claimant, or every person
with power of attorney for a claimant, and require such person or persons to
complete a Form EN-20 providing payment
information. Such form shall be signed
and returned to OWCP within sixty days of the date of the form or within such
greater period as may be allowed by OWCP.
Failure to sign and return the form within the required time may be
deemed to be a rejection of the payment.
If the claimant dies before the payment is received, the person who
receives the payment shall return it to OWCP for redetermination of the correct
disbursement of the payment. No payment
shall be made until OWCP has made a determination concerning the survivors
related to a respective claim for benefits.
(d)
The total amount of compensation (other than medical benefits) under
Part E that can be paid to all claimants as a result of the exposure of a
covered Part E employee shall not be more than $250,000 in any circumstances.
§
30.506 To whom and in what manner will
OWCP pay compensation?
(a)
Except with respect to claims under Part B of the Act for beryllium
sensitivity, payment shall be made to the covered Part B employee or the covered
Part E employee, to the duly appointed guardian or conservator of that
individual, or to the person with power of attorney for that individual, unless
the covered Part B employee or covered Part E employee is deceased at the time
of the payment. In all cases involving a
deceased covered Part B employee or deceased covered Part E employee, payment
shall be made to the eligible surviving beneficiary or beneficiaries, to the
duly appointed guardian or conservator of the eligible surviving beneficiary or
beneficiaries, or to every person with power of attorney for an eligible
surviving beneficiary, in accordance with the terms and conditions specified in
sections 7384s(e), 7384u(e), and 7385s-3(c) and (d) of EEOICPA.
(b) Under
Part B of the Act, compensation for any consequential injury, illness, impairment
or disease is limited to payment of medical benefits for that injury, illness,
impairment or disease. Under Part E of
the Act, compensation for any consequential injury, illness, impairment or
disease consists of medical benefits for that injury, illness, impairment or
disease, as well as any additional monetary benefits that are consistent with
the terms of § 30.505(d).
(c)
Rejected compensation payments, or shares of compensation payments,
shall not be distributed to other eligible surviving beneficiaries, but shall
be returned to the Fund.
(d)
No covered Part B employee may receive more than one lump-sum payment
under Part B of EEOICPA for any occupational illnesses he or she
contracted. However, any individual,
including a covered Part B employee who has received a lump-sum payment for his
or her own occupational illness or illnesses, may receive one lump-sum payment
for each deceased covered Part B employee for whom he or she qualifies as an
eligible surviving beneficiary under Part B of the Act.
§
30.507 What compensation will be
provided to covered Part B employees who only establish beryllium sensitivity
under Part B of EEOICPA?
The establishment of beryllium sensitivity
does not entitle a covered Part B employee, or the eligible surviving
beneficiary or beneficiaries of a deceased covered Part B employee, to any
lump-sum payment provided for under Part B.
Instead, a covered Part B employee whose sole accepted occupational
illness is beryllium sensitivity shall receive beryllium sensitivity
monitoring, as well as medical benefits for the treatment of this occupational
illness in accordance with § 30.400 of these regulations.
§
30.508 What is beryllium sensitivity
monitoring?
Beryllium sensitivity monitoring shall consist
of medical examinations to confirm and monitor the extent and nature of a covered
Part B employee’s beryllium sensitivity.
Monitoring shall also include regular medical examinations, with
diagnostic testing, to determine if the covered Part B employee has established
chronic beryllium disease.
§
30.509 Under what circumstances may a survivor
claiming under Part E of the Act choose to receive the benefits that would
otherwise be payable to a covered Part E employee who is deceased?
(a) If
a covered Part E employee dies after filing a claim but before monetary benefits
are paid under Part E of the Act, and his or her death is from a cause other
than a covered illness, his or her survivor can choose to receive either the
survivor benefits payable on account of the death of that covered Part E
employee, or the monetary benefits that would otherwise have been payable to
the covered Part E employee.
(b)
For the
purposes of this section only, a death “from a cause other than a covered
illness” refers only to a death that was solely
caused by a non-covered illness or illnesses.
Therefore, the choice referred to in paragraph (a) of this section will
not be available if a covered illness contributed to the death of the covered
Part E employee in any manner. In those
instances, survivor benefits will still be payable to the claimant, but he or
she cannot choose to receive the monetary benefits that would have otherwise
been payable to the deceased covered Part E employee in lieu of survivor
benefits.
(c)
OWCP only makes impairment determinations based on rationalized medical
evidence in the case file that is sufficiently detailed and meets the various
requirements for the many different types of impairment determinations possible
under the AMA’s Guides.
Therefore, OWCP will only make an impairment determination for a
deceased covered Part E employee pursuant to this section if the medical
evidence of record is sufficient to satisfy the pertinent requirements in the
AMA’s Guides and subpart J of this part.
Overpayments
§
30.510 How does OWCP notify an
individual of a payment made on a claim?
(a)
In addition to providing narrative descriptions to recipients of
benefits paid or payable, OWCP includes on each check a clear indication of the
reason the payment is being made. For
payments sent by electronic funds transfer, a notification of the date and
amount of payment appears on the statement from the recipient’s financial
institution.
(b)
By these means, OWCP puts the recipient on notice that a payment was
made and the amount of the payment. If
the amount received differs from the amount indicated on the written notice or
bank statement, the recipient is responsible for notifying OWCP of the difference. Absent affirmative evidence to the contrary,
the recipient will be presumed to have received the notice of payment, whether
mailed or transmitted electronically.
§
30.511 What is an “overpayment” for
purposes of EEOICPA?
An “overpayment” is any amount of
compensation paid under sections 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the
EEOICPA to a recipient that constitutes, as of the time OWCP makes such payment:
(a)
Payment where no amount is payable under this part; or
(b)
Payment in excess of the correct amount determined by OWCP.
§ 30.512
What does OWCP do when an overpayment is identified?
Before
seeking to recover an overpayment or adjust benefits, OWCP will advise the recipient
of the overpayment in writing that:
(a) The overpayment exists, and the amount of
overpayment;
(b) A preliminary finding shows either that the recipient
was or was not at fault in the creation of the overpayment;
(c) He or she has the right to inspect and copy OWCP
records relating to the overpayment; and
(d) He or she has the right to present written evidence
which challenges the fact or amount of the overpayment, and/or challenges the
preliminary finding that he or she was at fault in the creation of the
overpayment. He or she may also request
that recovery of the overpayment be waived.
Any submission of evidence or request that recovery of the overpayment
be waived must be presented to OWCP within 30 days of the date of the written
notice of overpayment.
§ 30.513
Under what circumstances may OWCP waive recovery of an overpayment?
(a) OWCP may consider waiving recovery of an
overpayment only if the recipient was not at fault in accepting or creating the
overpayment. Recipients of benefits paid
under EEOICPA are responsible for taking
all reasonable measures to ensure that payments received from OWCP are
proper. The recipient must show good
faith and exercise a high degree of care in reporting events which may affect
entitlement to or the amount of benefits.
A recipient who has done any of the following will be found to be at
fault with respect to creating an overpayment:
(1) Made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; or
(2) Failed to provide information which he or she
knew or should have known to be material; or
(3) Accepted a payment which he or she knew or
should have known to be incorrect. (This
provision applies only to the overpaid individual.)
(b) Whether or not OWCP determines that a
recipient was at fault with respect to the creation of an overpayment depends
on the circumstances surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the recipient’s capacity to realize that
he or she is being overpaid.
§ 30.514
If OWCP finds that the recipient of an overpayment was not at fault,
what criteria are used to decide whether to waive recovery of it?
If
OWCP finds that the recipient of an overpayment was not at fault, repayment
will still be required unless:
(a) Adjustment or recovery of the overpayment
would defeat the purpose of the Act (see § 30.516); or
(b) Adjustment or recovery of the overpayment
would be against equity and good conscience (see § 30.517).
§ 30.515
Is a recipient responsible for an overpayment that resulted from an
error made by OWCP?
(a) The fact that OWCP may have erred in making
the overpayment does not by itself relieve the recipient of the overpayment
from liability for repayment if the recipient also was at fault in accepting
the overpayment.
(b) However, OWCP may find that the recipient was
not at fault if failure to report an event affecting compensation benefits, or
acceptance of an incorrect payment, occurred because:
(1) The recipient relied on misinformation given
in writing by OWCP regarding the interpretation of a pertinent provision or EEOICPA
of this part; or
(2) OWCP erred in calculating either the percentage
of impairment or wage-loss under Part E of EEOICPA.
§ 30.516
Under what circumstances would recovery of an overpayment defeat the
purpose of the Act?
Recovery
of an overpayment will defeat the purpose of the Act if such recovery would
cause hardship to the recipient because:
(a) The recipient from whom OWCP seeks recovery
needs substantially all of his or her current income to meet current ordinary
and necessary living expenses; and
(b) The recipient’s assets do not exceed two
months’ expenditures as determined by OWCP using the Bureau of Labor Statistics
Consumer Expenditure Survey tables.
§ 30.517
Under what circumstances would recovery of an overpayment be against
equity and good conscience?
(a) Recovery of an overpayment is considered to be
against equity and good conscience when the recipient would experience severe
financial hardship in attempting to repay the debt.
(b) Recovery of an overpayment is also considered
to be against equity and good conscience when the recipient, in reliance on
such payments or on notice that such payments would be made, gives up a
valuable right or changes his or her position for the worse. In making such a decision, OWCP does not
consider the recipient’s current ability to repay the overpayment.
(1) To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it
cannot be regained, and that the action was based chiefly or solely in reliance
on the payments or on the notice of payment.
Gratuitous transfers of funds to other individuals are not considered
relinquishments of valuable rights.
(2) To establish that a recipient’s position has
changed for the worse, it must be shown that the decision made would not
otherwise have been made but for the receipt of benefits, and that this
decision resulted in a loss.
§ 30.518
Can OWCP require the recipient of the overpayment to submit additional
financial information?
(a) The recipient of the overpayment is
responsible for providing information about income, expenses and assets as
specified by OWCP. This information is
needed to determine whether or not recovery of an overpayment would defeat the
purpose of the Act, or would be against equity and good conscience. This information will also be used to
determine the repayment schedule, if necessary.
(b) Failure to submit this requested information
within 30 days of the request shall result in denial of waiver, and no further
request for waiver shall be considered until the requested information is
furnished.
§ 30.519
How does OWCP communicate its final decision concerning recovery of an
overpayment?
(a) After considering any written documentation or
argument submitted to OWCP within the 30-day period set out in § 30.512(d),
OWCP will issue a final decision on the overpayment. OWCP will send a copy of the final decision to
the individual from whom recovery is sought and his or her representative, if
any.
(b) The provisions of subpart D of this part do
not apply to any decision regarding the recovery of an overpayment.
§ 30.520
How are overpayments collected?
(a) When an overpayment has been made to a
recipient who is entitled to further payments, the recipient shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. If no
refund is made, OWCP shall recover the overpayment by reducing any further
lump-sum payments due currently or in the future, taking into account the
financial circumstances of the recipient, and any other relevant factors, so as
to minimize any hardship. Should the recipient
die before collection has been completed, further collection shall be made by
decreasing later payments, if any, payable under EEOICPA with respect to the underlying
occupational illness or covered illness.
(b) When
an overpayment has been made to a recipient and OWCP is unable to recover the
overpayment by reducing compensation due currently, the recipient shall refund
to OWCP the amount of the overpayment as soon as the error is discovered or his
or her attention is called to same. The
overpayment is subject to the provisions of the Federal Claims Collection Act
of 1966, as amended (31 U.S.C. 3701 et
seq.), and may be reported to the Internal Revenue Service as
income. If the recipient fails to make
such refund, OWCP may recover the overpayment through any available means,
including offset of salary, annuity benefits, or other Federal payments,
including tax refunds as authorized by the Tax Refund Offset Program, or
referral of the debt to a collection agency or to the Department of Justice.
Subpart G--Special Provisions
Representation
§
30.600 May a claimant designate a
representative?
(a)
The claims process under this part is informal, and OWCP acts as an
impartial evaluator of the evidence. A
claimant need not be represented to file a claim or receive a payment. Nevertheless, a claimant may appoint one
individual to represent his or her interests, but the appointment must be in
writing.
(b)
There can be only one representative at any one time, so after one
representative has been properly appointed, OWCP will not recognize another
individual as a representative until the claimant withdraws the authorization
of the first individual. In addition, OWCP
will recognize only certain types of individuals (see § 30.601).
(c)
A properly appointed representative who is recognized by OWCP may make a
request or give direction to OWCP regarding the claims process, including a
hearing. This authority includes
presenting or eliciting evidence, making arguments on facts or the law, and
obtaining information from the case file, to the same extent as the claimant.
(1)
Any notice requirement contained in this part or EEOICPA is fully
satisfied if served on the representative, and has the same force and effect as
if sent to the claimant.
(2)
A representative does not have authority to complete and sign the Form
EN-20, described in § 30.505(c) of these
regulations, which collects information necessary for issuance of a
compensation payment.
§
30.601 Who may serve as a
representative?
A claimant may authorize any individual to
represent him or her in regard to a claim under EEOICPA, unless that
individual’s service as a representative would violate any applicable provision
of law (such as 18 U.S.C. 205 and 208).
A federal employee may act as a representative only:
(a)
On behalf of immediate family members, defined as a spouse, children,
parents, and siblings of the representative, provided no fee or gratuity is
charged; or
(b)
While acting as a union representative, defined as any officially
sanctioned union official, and no fee or gratuity is charged.
§
30.602 Who is responsible for paying the
representative’s fee?
A representative may charge the claimant a
fee for services and for costs associated with the representation before
OWCP. The claimant is solely responsible
for paying the fee and other costs. OWCP
will not reimburse the claimant, nor is it in any way liable for the amount of
the fee and costs.
§
30.603 Are there any limitations on what
the representative may charge the claimant for his or her services?
(a)
Notwithstanding any contract, the representative may not receive, for
services rendered in connection with a claim pending before OWCP, more than the
percentages of the lump-sum payment made to the claimant set out in paragraph
(b) of this section.
(b) The percentages referred to
in paragraph (a) of this section are:
(1) 2
percent for the filing of an initial claim with OWCP, provided that the
representative was retained prior to the filing of the initial claim; plus
(2) 10 percent of the difference
between the lump-sum payment made to the claimant and the amount proposed in
the recommended decision with respect to objections to a recommended decision.
(c)(1) Any representative who
violates this section shall be fined not more than $5,000.
(2) The authority to prosecute
violations of this limitation lies with the Department of Justice.
(d) The fee limitations described in this section
shall not apply with respect to representative services that are rendered in
connection with a petition filed with a U.S. District Court seeking review of
an OWCP decision that is final pursuant to § 30.316(d), or with respect to any
subsequent appeal in such a proceeding.
Third Party Liability
§
30.605 What rights does the
If an occupational illness or covered
illness for which compensation is payable under
EEOICPA is caused, wholly or partially, by someone other than a federal
employee acting within the scope of his or her employment, a DOE contractor or
subcontractor, a beryllium vendor or atomic weapons employer, the United States
is subrogated for the full amount of any payment of compensation under EEOICPA
to any right or claim that the individual to whom the payment was made may have
against any person or entity on account of such occupational illness or covered
illness.
§
30.606 Under what circumstances must a
recovery of money or other property in connection with an illness for which
benefits are payable under EEOICPA be reported to OWCP?
Any person who has filed an EEOICPA claim
that has been accepted by OWCP (whether or not compensation has been paid), or
who has received EEOICPA benefits in connection with a claim filed by another,
is required to notify OWCP of the receipt of money or other property as a
result of a settlement or judgment in connection with the circumstances of that
claim.
§
30.607 How is a structured settlement
(that is, a settlement providing for receipt of funds over a specified period
of time) treated for purposes of reporting the recovery?
In this situation, the recovery to be
reported is the present value of the right to receive all of the payments
included in the structured settlement, allocated in the case of multiple
recipients in the same manner as single payment recoveries.
§
30.608 How does the
The subrogated amount of a specific claim
consists of the total money paid by OWCP from the Energy Employees Occupational
Illness Compensation Fund with respect to that claim to or on behalf of a
covered Part B employee, a covered Part E employee or an eligible surviving
beneficiary, less charges for any medical file review (i.e., the
physician did not examine the employee) done at the request of OWCP. Charges for medical examinations also may be
subtracted if the covered Part B employee, covered Part E employee or an eligible
surviving beneficiary establishes that the examinations were required to be
made available to the covered Part B employee or covered Part E employee under
a statute other than EEOICPA.
§
30.609 Is a settlement or judgment
received as a result of allegations of medical malpractice in treating an
illness covered by EEOICPA a recovery that must be reported to OWCP?
Since an injury caused by medical
malpractice in treating an occupational illness or covered illness compensable
under EEOICPA is also covered under EEOICPA, any recovery in a suit alleging
such an injury is treated as a recovery that must be reported to OWCP.
§
30.610 Are payments to a covered Part B
employee, a covered Part E employee or an eligible surviving beneficiary as a
result of an insurance policy which the employee or eligible surviving
beneficiary has purchased a recovery that must be reported to OWCP?
Since payments received by a covered Part B
employee, a covered Part E employee or an eligible surviving beneficiary
pursuant to an insurance policy purchased by someone other than a liable third
party are not payments in satisfaction of liability for causing an occupational
illness or covered illness compensable under the Act, they are not considered a
recovery that must be reported to OWCP.
§
30.611 If a settlement or judgment is
received for more than one medical condition, can the amount paid on a single
EEOICPA claim be attributed to different conditions for purposes of calculating
the amount to which the United States is subrogated?
(a)
All medical conditions accepted by OWCP in connection with a single
claim are treated as the same illness for the purpose of computing the amount
which the United States is entitled to offset in connection with the receipt of
a recovery from a third party, except that an injury caused by medical
malpractice in treating an illness covered under EEOICPA will be treated as a separate injury.
(b)
If an illness covered under EEOICPA is caused under circumstances creating
a legal liability in more than one person, other than the United States, a DOE
contractor or subcontractor, a beryllium vendor or an atomic weapons employer,
to pay damages, OWCP will determine whether recoveries received from one or
more third parties should be attributed to separate conditions for which
compensation is payable in connection with a single EEOICPA claim. If such an attribution is both practicable
and equitable, as determined by OWCP, in its discretion, the conditions will be
treated as separate injuries for purposes of calculating the amount to which
the
Effect of Tort Suits Against
Beryllium Vendors and Atomic Weapons Employers
§
30.615 What type of tort suits filed
against beryllium vendors or atomic weapons employers may disqualify certain
claimants from receiving benefits under Part B of EEOICPA?
(a) A
tort suit (other than an administrative or judicial proceeding for workers’
compensation) that includes a claim
arising out of a covered Part B employee’s employment-related exposure to
beryllium or radiation, filed against a beryllium vendor or an atomic weapons
employer, by a covered Part B employee or an eligible surviving beneficiary or
beneficiaries of a deceased covered Part B employee, will disqualify that
otherwise eligible individual or individuals from receiving benefits under Part
B of EEOICPA unless such claim is terminated in accordance with the
requirements of §§ 30.616 through 30.619 of these regulations.
(b)
The term “claim arising out of a covered Part B employee’s
employment-related exposure to beryllium or radiation” used in paragraph (a) of
this section includes a claim that is derivative of a covered Part B employee’s
employment-related exposure to beryllium or radiation, such as a claim for loss
of consortium raised by a covered Part B employee’s spouse.
(c)
If all claims arising out of a covered Part B employee’s
employment-related exposure to beryllium or radiation are terminated in
accordance with the requirements of §§ 30.616 through 30.619 of these
regulations, proceeding with the remaining portion of the tort suit filed
against a beryllium vendor or an atomic weapons employer will not disqualify an
otherwise eligible individual or individuals from receiving benefits under Part
B of EEOICPA.
§
30.616 What happens if this type of tort
suit was filed prior to
(a)
If a tort suit described in § 30.615 was filed prior to October 30,
2000, the claimant or claimants will not be disqualified from receiving any
EEOICPA benefits to which they may be found entitled if the tort suit was
terminated in any manner prior to December 28, 2001.
(b)
If a tort suit described in § 30.615 was filed prior to October 30, 2000
and was pending as of December 28, 2001, the claimant or claimants will be
disqualified from receiving any benefits under Part B of EEOICPA unless they
dismissed all claims arising out of a covered Part B employee’s
employment-related exposure to beryllium or radiation that were included in the
tort suit prior to December 31, 2003.
§
30.617 What happens if this type of tort
suit was filed during the period from
(a)
If a tort suit described in § 30.615 was filed during the period from
October 30, 2000 through December 28, 2001, the claimant or claimants will be
disqualified from receiving any benefits under Part B of EEOICPA unless they
dismiss all claims arising out of a covered Part B employee’s
employment-related exposure to beryllium or radiation that are included in the
tort suit on or before the last permissible date described in paragraph (b) of
this section.
(b)
The last permissible date is the later of:
(1)
(2)
The date that is 30 months after the date the claimant or claimants
first became aware that an illness of the covered Part B employee may be
connected to his or her exposure to beryllium or radiation covered by
EEOICPA. For purposes of determining
when this 30-month period begins, “the date the claimant or claimants first
became aware” will be deemed to be the date they received either a
reconstructed dose from HHS, or a diagnosis of a covered beryllium illness, as
applicable.
§
30.618 What happens if this type of tort
suit was filed after
(a)
If a tort suit described in § 30.615 was filed after
(b)
If a tort suit described in § 30.615 was filed after December 28, 2001
and a judgment has not yet been entered against the claimant or claimants, they
will also be disqualified from receiving any benefits under Part B of EEOICPA
unless, prior to entry of any judgment, they dismiss all claims arising out of
a covered Part B employee’s employment-related exposure to beryllium or
radiation that are included in the tort suit on or before the last permissible
date described in paragraph (c) of this section.
(c) The
last permissible date is the later of:
(1)
(2)
The date that is 30 months after the date the claimant or claimants
first became aware that an illness of the covered Part B employee may be
connected to his or her exposure to beryllium or radiation covered by
EEOICPA. For purposes of determining
when this 30-month period begins, “the date the claimant or claimants first
became aware” will be deemed to be the date they received either a reconstructed
dose from HHS, or a diagnosis of a covered beryllium illness, as applicable.
§
30.619 Do all the parties to this type
of tort suit have to take these actions?
The type of tort suits described in §
30.615 may be filed by more than one individual, each with a different cause of
action. For example, a tort suit may be
filed against a beryllium vendor by both a covered Part B employee and his or
her spouse, with the covered Part B employee claiming for chronic beryllium
disease and the spouse claiming for loss of consortium due to the covered Part
B employee’s exposure to beryllium.
However, since the spouse of a living covered Part B employee could not
be an eligible surviving beneficiary under Part B of EEOICPA, the spouse would not have to comply
with the termination requirements of §§ 30.616 through 30.618. A similar result would occur if a tort suit
were filed by both the spouse of a deceased covered Part B employee and other
family members (such as children of the deceased covered part B employee). In this case, the spouse would be the only
eligible surviving beneficiary of the deceased covered Part B employee under Part
B of the EEOICPA because the other family members could not be eligible for
benefits while he or she was alive. As a
result, the spouse would be the only party to the tort suit who would have to
comply with the termination requirements of §§ 30.616 through 30.618.
§
30.620 How will OWCP ascertain whether a
claimant filed this type of tort suit and if he or she has been disqualified
from receiving any benefits under Part B of
EEOICPA?
Prior to authorizing payment on a claim
under Part B of EEOICPA, OWCP will require each claimant to execute and provide
an affidavit stating if he or she filed a tort suit (other than an
administrative or judicial proceeding for workers’ compensation) against either
a beryllium vendor or an atomic weapons employer that included a claim arising
out of a covered Part B employee’s employment-related exposure to beryllium or
radiation, and if so, the current status of such tort suit. OWCP may also require the submission of any
supporting evidence necessary to confirm the particulars of any affidavit
provided under this section.
Coordination of Part E Benefits with State Workers’
Compensation Benefits
§ 30.625 What does “coordination of benefits” mean
under Part E of EEOICPA?
In general, “coordination of benefits”
under Part E of the Act occurs when compensation to be received under Part E is
reduced by OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect certain
benefits the beneficiary receives under a state workers’ compensation program
for the same covered illne
§ 30.626 How will OWCP coordinate compensation payable
under Part E of EEOICPA with benefits from state workers’ compensation
programs?
(a) OWCP will reduce the compensation payable
under Part E by the amount of benefits the claimant receives from a state
workers’ compensation program by reason of the same covered illness, after
deducting the reasonable costs to the claimant of obtaining those benefits.
(b)
To determine the amount of any reduction of EEOICPA compensation, OWCP
shall require the covered Part E employee or each eligible surviving
beneficiary filing a claim under Part E to execute and provide an affidavit
reporting the amount of any benefit received pursuant to a claim filed in a
state workers’ compensation program for the same covered illness.
(c)
If a covered Part E employee or a survivor of such employee receives
benefits through a state workers’ compensation program pursuant to a claim for
the same covered illness, OWCP shall reduce a portion of the dollar amount of
such state workers’ benefit from the compensation payable under Part E. OWCP will calculate the net amount of the state
workers’ compensation benefit amount to be subtracted from the compensation
payment under Part E in the following manner:
(1)
OWCP will first determine the dollar value of the benefits received by
that individual from a state workers’ compensation program by including all
benefits, other than medical and vocational rehabilitation benefits, received
for the same covered illne
(2)
OWCP will then make certain deductions from the above dollar benefit
received under a state workers’ compensation program to arrive at the dollar
amount that will be subtracted from any compensation payable under Part E of
EEOICPA.
(i)
Allowable deductions consist of reasonable costs in obtaining state
workers’ compensation benefits incurred by that individual, including but not
limited to attorney’s fees OWCP deems reasonable and itemized costs of suit
(out-of-pocket expenditures not part of the normal overhead of a law firm’s
operation like filing, travel expenses, witne
(ii)
The EEOICPA benefits that will be reduced will consist of any unpaid
monetary payments payable in the future and medical benefits payable in the
future. In those cases where it has not
yet paid EEOICPA benefits under Part E, OWCP will reduce such benefits on a
dollar-for-dollar basis, beginning with the current monetary payments
first. If the amount to be subtracted
exceeds the monetary payments currently payable, OWCP will reduce ongoing
EEOICPA medical benefits payable in the future by the amount of any remaining
surplus. This means that OWCP will apply
the amount it would otherwise pay to reimburse the covered Part E employee for
any ongoing EEOICPA medical treatment to the remaining surplus until it is
absorbed (or until further monetary benefits become payable that are sufficient
to absorb the surplus).
(3)
The above coordination of benefits will not occur if the beneficiary
under a state workers’ compensation program receives state workers’
compensation benefits for both a covered and a non-covered illne
§ 30.627 Under what circumstances will OWCP waive the statutory
requirement to coordinate these benefits?
A waiver to the requirement to coordinate Part
E benefits with benefits paid under a state workers’ compensation program may
be granted if OWCP determines that the administrative costs and burdens of
coordinating benefits in a particular case or cla
Subpart H--Information for Medical
Providers
Medical Records and Bills
§
30.700 What kinds of medical records
must providers keep?
Federal government medical officers,
private physicians and hospitals are required to keep records of all cases
treated by them under EEOICPA so they can supply OWCP with a history of the
claimed occupational illness or covered illness, a description of the nature
and extent of the claimed occupational illness or covered illness, the results
of any diagnostic studies performed, and the nature of the treatment rendered. This requirement terminates after a provider
has supplied OWCP with the above-noted information, and otherwise terminates
ten years after the record was created.
§ 30.701 How are medical bills to be submitted?
(a)
All charges for medical and surgical treatment, appliances or supplies
furnished to employees, except for treatment and supplies provided by nursing
homes, shall be supported by medical evidence as provided in § 30.700. The physician or provider shall itemize the
charges on Form OWCP-1500 or CMS-1500 (for professional charges), Form OWCP-92
or UB-92 (for hospitals), an electronic or paper-based bill that includes
required data elements (for pharmacies), or other form as warranted, and submit
the form or bill promptly for processing.
(b)
The provider shall identify each service performed using the Physician’s
Current Procedural Terminology (CPT) code, the Healthcare Common Procedure
Coding System (HCPCS) code, the National Drug Code (NDC) number, or the Revenue
Center Code (RCC), with a brief narrative description. Where no code is applicable, a detailed
description of services performed should be provided.
(c)
For professional charges billed on Form OWCP-1500 or CMS-1500, the
provider shall also state each diagnosed condition and furnish the
corresponding diagnostic code using the “International Classification of
Disease, 9th Edition, Clinical Modification” (ICD-9-CM), or as revised. A separate bill shall be submitted when the
employee is discharged from treatment or monthly, if treatment for the
occupational illness is necessary for more than 30 days.
(1)(i)
Hospitals shall submit charges for medical and surgical treatment or
supplies promptly on Form OWCP-92 or UB-92.
The provider shall identify each outpatient radiology service,
outpatient pathology service and physical therapy service performed, using
HCPCS/CPT codes with a brief narrative description. The charge for each individual service, or
the total charge for all identical services, should also appear on the form.
(ii)
Other outpatient hospital services for which HCPCS/CPT codes exist shall
also be coded individually using the coding scheme noted in this section. Services for which there are no HCPCS/CPT
codes available can be presented using the RCCs described in the “National
Uniform Billing Data Elements Specifications,” current edition. The provider shall also furnish the
diagnostic code using the ICD-9-CM. If
the outpatient hospital services include surgical and/or invasive procedures,
the provider shall code each procedure using the proper HCPCS/CPT codes and
furnishing the corresponding diagnostic codes using the ICD-9-CM.
(2)
Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on electronic or paper-based bills and submit them
promptly for processing. Bills for
prescription medications must include all required data elements, including the
NDC number assigned to the product, the generic or trade name of the drug
provided, the prescription number, the quantity provided, and the date the
prescription was filled.
(3)
Nursing homes shall itemize charges for appliances, supplies or services
on the provider’s billhead stationery and submit them promptly for processing.
(d)
By submitting a bill and/or accepting payment, the provider signifies
that the service for which payment is sought was performed as described and was
necessary. In addition, the provider
thereby agrees to comply with all regulations set forth in this subpart
concerning the rendering of treatment and/or the process for seeking payment
for medical services, including the limitation imposed on the amount to be paid
for such services.
(e)
In summary, bills submitted by providers must: be itemized on Form OWCP-1500 or CMS-1500
(for physicians), Form OWCP-92 or UB-92 (for hospitals), or an electronic or
paper-based bill that includes required data elements (for pharmacies); contain
the signature or signature stamp of the provider; and identify the procedures
using HCPCS/CPT codes, RCCs, or NDC numbers.
Otherwise, the bill may be returned to the provider for correction and
resubmission. The decision of OWCP
whether to pay a provider’s bill is final when issued and is not subject to the
adjudicatory process described in subpart D of this part.
§
30.702 How should an employee prepare
and submit requests for reimbursement for medical expenses, transportation
costs, loss of wages, and incidental expenses?
(a)
If an employee has paid bills for medical, surgical or other services,
supplies or appliances provided by a professional due to an occupational
illness or a covered illness, he or she must submit a request for reimbursement
on Form OWCP-915, together with an itemized bill on Form OWCP-1500 or CMS-1500
prepared by the provider and a medical report as provided in § 30.700, for
consideration.
(1)
The provider of such service shall state each diagnosed condition and
furnish the applicable ICD-9-CM code and identify each service performed using
the applicable HCPCS/CPT code, with a brief narrative description of the
service performed, or, where no code is applicable, a detailed description of
that service.
(2)
The reimbursement request must be accompanied by evidence that the
provider received payment for the service from the employee and a statement of
the amount paid. Acceptable evidence
that payment was received includes, but is not limited to, a signed statement
by the provider, a mechanical stamp or other device showing receipt of payment,
a copy of the employee’s canceled check (both front and back) or a copy of the
employee’s credit card receipt.
(b)
If a hospital, pharmacy or nursing home provided services for which the
employee paid, the employee must also use Form OWCP-915 to request
reimbursement and should submit the request in accordance with the provisions
of § 30.701(a). Any such request for
reimbursement must be accompanied by evidence, as described in paragraph (a)(2)
of this section, that the provider received payment for the service from the
employee and a statement of the amount paid.
(c) The
requirements of paragraphs (a) and (b) of this section may be waived if
extensive delays in the filing or the adjudication of a claim make it unusually
difficult for the employee to obtain the required information.
(d)
Copies of bills submitted for reimbursement will not be accepted unless
they bear the original signature of the provider and evidence of payment. Payment for medical and surgical treatment,
appliances or supplies shall in general be no greater than the maximum
allowable charge for such service determined by OWCP, as set forth in §
30.705. The decision of OWCP whether to
reimburse an employee for out-of-pocket medical expenses, and the amount of any
reimbursement, is final when issued and is not subject to the adjudicatory
process described in subpart D of this part.
(e)
An employee will be only partially reimbursed for a medical expense if
the amount he or she paid to a provider for the service exceeds the maximum
allowable charge set by OWCP’s schedule.
If this happens, the employee will be advised of the maximum allowable
charge for the service in question and of his or her responsibility to ask the
provider to refund to the employee, or credit to the employee’s account, the
amount he or she paid which exceeds the maximum allowable charge. The provider that the employee paid, but not
the employee, may request reconsideration of the fee determination as set forth
in § 30.712.
(f)
If the provider fails to make appropriate refund to the employee, or to
credit the employee’s account, within 60 days after the employee requests a
refund of any excess amount, or the date of a subsequent reconsideration
decision which continues to disallow all or a portion of the disputed amount,
OWCP will initiate exclusion procedures as provided by § 30.715.
(g)
If the provider does not refund to the employee or credit to his or her
account the amount of money paid in excess of the allowed charge, the employee
should submit documentation of the attempt to obtain such refund or credit to OWCP. OWCP may authorize reasonable reimbursement
to the employee after reviewing the facts and circumstances of the case.
§
30.703 What are the time limitations on
OWCP’s payment of bills?
OWCP will pay providers and reimburse
employees promptly for all bills received on an approved form and in a timely
manner. However, no bill will be paid
for expenses incurred if the bill is submitted more than one year beyond the
end of the calendar year in which the expense was incurred or the service or
supply was provided, or more than one year beyond the end of the calendar year
in which the claim was first accepted as compensable by OWCP, whichever is
later.
Medical Fee Schedule
§
30.705 What services are covered by the
OWCP fee schedule?
(a)
Payment for medical and other health services furnished by physicians,
hospitals and other providers for occupational illnesses or covered illnesses shall
not exceed a maximum allowable charge for such service as determined by OWCP,
except as provided in this section.
(b)
The schedule of maximum allowable charges does not apply to charges for
services provided in nursing homes, but it does apply to charges for treatment
furnished in a nursing home by a physician or other medical professional.
(c)
The schedule of maximum allowable charges also does not apply to charges
for appliances, supplies, services or treatment furnished by medical facilities
of the U.S. Public Health Service or the Departments of the Army, Navy, Air
Force and Veterans Affairs.
§
30.706 How are the maximum fees defined?
For professional medical services, OWCP
shall maintain a schedule of maximum allowable fees for procedures performed in
a given locality. The schedule shall
consist of: an assignment of a value to
procedures identified by HCPCS/CPT code which represents the relative skill,
effort, risk and time required to perform the procedure, as compared to other
procedures of the same general class; an index based on a relative value scale
that considers skill, labor,
overhead, malpractice insurance and other related costs; and a monetary value
assignment (conversion factor) for one unit of value in each of the categories
of service.
§
30.707 How are payments for particular
services calculated?
Payment for a procedure identified by a
HCPCS/CPT code shall not exceed the amount derived by multiplying the relative
values for that procedure by the geographic indices for services in that area
and by the dollar amount assigned to one unit in that category of service.
(a)
The “locality” which serves as a basis for the determination of average
cost is defined by the Bureau of Census Metropolitan Statistical Areas. OWCP shall base the determination of the
relative per capita cost of medical care in a locality using information about
enrollment and medical cost per county, provided by the Centers for Medicare
and Medicaid Services (CMS).
(b)
OWCP shall assign the relative value units (RVUs) published by CMS to
all services for which CMS has made assignments, using the most recent
revision. Where there are no RVUs
assigned to a procedure, OWCP may develop and assign any RVUs considered
appropriate. The geographic adjustment
factor shall be that designated by Geographic Practice Cost Indices for
Metropolitan Statistical Areas as devised for CMS and as updated or revised by
CMS from time to time. OWCP will devise
conversion factors for each category of service, and in doing so may adapt CMS
conversion factors as appropriate using OWCP’s processing experience and internal
data.
(c)
For example, if the unit values for a particular surgical procedure are
2.48 for physician’s work (W), 3.63 for practice expense (PE), and 0.48 for
malpractice insurance (M), and the dollar value assigned to one unit in that
category of service (surgery) is $61.20, then the maximum allowable charge for
one performance of that procedure is the product of the three RVUs times the
corresponding geographical indices for the locality times the conversion
factor. If the geographic indices for
the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then the maximum payment
calculation is:
[(2.48)(0.988)
+ (3.63)(0.948) + (0.48)(1.174)] x $61.20
[2.45
+ 3.44 + .56] x $61.20
6.45 x
$61.20 = $394.74
§
30.708 Does the fee schedule apply to every
kind of procedure?
Where the time, effort and skill required
to perform a particular procedure vary widely from one occasion to the next,
OWCP may choose not to assign a relative value to that procedure. In this case the allowable charge for the
procedure will be set individually based on consideration of a detailed medical
report and other evidence. At its
discretion, OWCP may set fees without regard to schedule limits for specially
authorized consultant examinations, for directed medical examinations, and for
other specially authorized services.
§
30.709 How are payments for medicinal
drugs determined?
Payment for medicinal drugs prescribed by
physicians shall not exceed the amount derived by multiplying the average
wholesale price of the medication by the quantity or amount provided, plus a
dispensing fee.
(a)
All prescription medications identified by NDC number will be assigned
an average wholesale price representing the product’s nationally recognized
wholesale price as determined by surveys of manufacturers and wholesalers. OWCP will establish the dispensing fee.
(b)
The NDC numbers, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.
§
30.710 How are payments for inpatient
medical services determined?
(a)
OWCP will pay for inpatient medical services according to
pre-determined, condition-specific rates based on the Prospective Payment
System (PPS) devised by CMS (42 CFR parts 412, 413, 424, 485, and 489). Using this system, payment is derived by
multiplying the diagnosis-related group (DRG) weight assigned to the hospital
discharge by the provider-specific factors.
(1)
All hospital discharges will be classified according to the DRGs
prescribed by CMS in the form of the DRG Grouper software program. On this list, each DRG represents the average
resources necessary to provide care in a case in that DRG relative to the
national average of resources consumed per case.
(2)
The provider-specific factors will be provided by CMS in the form of
their PPS Pricer software program. The
software takes into consideration the type of facility, census division, actual
geographic location of the hospital, case mix cost per discharge, number of
hospital beds, intern/beds ratio, operating cost to charge ratio, and other
factors used by CMS to determine the specific rate for a hospital discharge
under their PPS. OWCP may devise price
adjustment factors as appropriate using OWCP’s processing experience and internal
data.
(3)
OWCP will base payments to facilities excluded from CMS’s PPS on
consideration of detailed medical reports and other evidence.
(4)
OWCP shall review the pre-determined hospital rates at least once a
year, and may adjust any or all components when OWCP deems it necessary or
appropriate.
(b)
OWCP shall review the schedule of fees at least once a year, and may
adjust the schedule or any of its components when OWCP deems it necessary or
appropriate.
§
30.711 When and how are fees reduced?
(a)
OWCP shall accept a provider’s designation of the code to identify a
billed procedure or service if the code is consistent with medical reports and
other evidence. Where no code is
supplied, OWCP may determine the code based on the narrative description of the
procedure on the billing form and in associated medical reports. OWCP will pay no more than the maximum
allowable fee for that procedure.
(b)
If the charge submitted for a service supplied to an employee exceeds
the maximum amount determined to be reasonable according to the schedule, OWCP
shall pay the amount allowed by the schedule for that service and shall notify
the provider in writing that payment was reduced for that service in accordance
with the schedule. OWCP shall also
notify the provider of the method for requesting reconsideration of the balance
of the charge. The decision of OWCP to
pay less than the charged amount is final when issued and is not subject to the
adjudicatory process described in subpart D of this part.
§
30.712 If OWCP reduces a fee, may a
provider request reconsideration of the reduction?
(a)
A physician or other provider whose charge for service is only partially
paid because it exceeds a maximum allowable amount set by OWCP may, within 30
days, request reconsideration of the fee determination.
(1)
Any such request will be considered by the district office with
jurisdiction over the employee’s claim.
The request must be accompanied by documentary evidence that the procedure
performed was either incorrectly identified by the original code, that the
presence of a severe or concomitant medical condition made treatment especially
difficult, or that the provider possessed unusual qualifications. In itself, board certification in a specialty
is not sufficient evidence of unusual qualifications to justify a charge in
excess of the maximum allowable amount set by OWCP. These are the only three circumstances that
will justify reevaluation of the paid amount.
(2)
A list of district offices and their respective areas of jurisdiction is
available upon request from the U.S. Department of Labor, Office of Workers’
Compensation Programs,
eeoicp/main.htm. Within 30 days of receiving the request for
reconsideration, the district office shall respond in writing stating whether
or not an additional amount will be allowed as reasonable, considering the
evidence submitted.
(b)
If the district office issues a decision that continues to disallow a
contested amount, the provider may apply to the Regional Director of the region
with jurisdiction over the district office.
The application must be filed within 30 days of the date of such
decision, and it may be accompanied by additional evidence. Within 60 days of receipt of such
application, the Regional Director shall issue a decision in writing stating
whether or not an additional amount will be allowed as reasonable, considering
the evidence submitted.
§
30.713 If OWCP reduces a fee, may a
provider bill the employee for the balance?
A provider whose fee for service is
partially paid by OWCP as a result of the application of its fee schedule or
other tests for reasonableness in accordance with this part shall not request
payment from the employee for the unpaid amount of the provider’s bill.
(a)
Where a provider’s fee for a particular service or procedure is lower to
the general public than as provided by the schedule of maximum allowable
charges, the provider shall bill at the lower rate. A fee for a particular service or procedure
which is higher than the provider’s fee to the general public for that same
service or procedure will be considered a charge “substantially in excess of
such provider’s customary charges” for the purposes of § 30.715(d).
(b)
A provider whose fee for service is partially paid by OWCP as the result
of the application of the schedule of maximum allowable charges and who
collects or attempts to collect from the employee, either directly or through a
collection agent, any amount in excess of the charge allowed by OWCP, and who
does not cease such action or make appropriate refund to the employee within 60
days of the date of the decision of OWCP, shall be subject to the exclusion
procedures provided by § 30.715(h).
Exclusion of Providers
§
30.715 What are the grounds for
excluding a provider from payment under this part?
A physician, hospital, or provider of
medical services or supplies shall be excluded from payment under this part if
such physician, hospital or provider has:
(a)
Been convicted under any criminal statute of fraudulent activities in
connection with any federal or state program for which payments are made to
providers for similar medical, surgical or hospital services, appliances or
supplies;
(b)
Been excluded or suspended, or has resigned in lieu of exclusion or
suspension, from participation in any federal or state program referred to in
paragraph (a) of this section;
(c)
Knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact in connection with a determination of the
right to reimbursement under this part, or in connection with a request for
payment;
(d)
Submitted, or caused to be submitted, three or more bills or requests
for payment within a 12-month period under this subpart containing charges
which OWCP finds to be substantially in excess of such provider’s customary
charges, unless OWCP finds there is good cause for the bills or requests
containing such charges;
(e)
Knowingly failed to timely reimburse employees for treatment, services
or supplies furnished under this subpart and paid for by OWCP;
(f)
Failed, neglected or refused on three or more occasions during a
12-month period to submit full and accurate medical reports, or to respond to
requests by OWCP for additional reports or information, as required by § 30.700
of this part;
(g)
Knowingly furnished treatment, services or supplies which are
substantially in excess of the employee’s needs, or of a quality which fails to
meet professionally recognized standards; or
(h)
Collected or attempted to collect from the employee, either directly or
through a collection agent, an amount in excess of the charge allowed by OWCP
for the procedure performed, and has failed or refused to make appropriate
refund to the employee, or to cease such collection attempts, within 60 days of
the date of the decision of OWCP.
§
30.716 What will cause OWCP to
automatically exclude a physician or other provider of medical services and
supplies?
(a)
OWCP shall automatically exclude a physician, hospital, or provider of
medical services or supplies who:
(1)
Has been convicted of a crime described in § 30.715(a); or
(2)
Has been excluded or suspended, or has resigned in lieu of exclusion or
suspension, from participation in any federal or state program for which
payments are made to providers for similar medical, surgical or hospital
services, appliances or supplies.
(b)
The exclusion applies to participating in the program and to seeking
payment under this part for services performed after the date of the entry of
the judgment of conviction or order of exclusion, suspension or resignation, as
the case may be, by the court or agency concerned. Proof of the conviction, exclusion,
suspension or resignation may consist of a copy thereof authenticated by the
seal of the court or agency concerned.
§
30.717 When are OWCP’s exclusion
procedures initiated?
Upon receipt of information indicating that
a physician, hospital or provider of medical services or supplies (hereinafter
the provider) has engaged in activities enumerated in paragraphs (c) through
(h) of § 30.715, the Regional Director, after completion of inquiries he or she
deems appropriate, may initiate procedures to exclude the provider from
participation in the EEOICPA program.
For the purposes of these procedures, “Regional Director” may include
any officer designated to act on his or her behalf.
§
30.718 How is a provider notified of
OWCP’s intent to exclude him or her?
The Regional Director shall initiate the
exclusion process by sending the provider a letter, by certified mail and with
return receipt requested, which shall contain the following:
(a) A
concise statement of the grounds upon which exclusion shall be based;
(b)
A summary of the information, with supporting documentation, upon which
the Regional Director has relied in reaching an initial decision that exclusion
proceedings should begin;
(c)
An invitation to the provider to:
(1)
Resign voluntarily from participation in the EEOICPA program without
admitting or denying the allegations presented in the letter; or
(2)
Request that the decision on exclusion be based upon the existing record
and any additional documentary information the provider may wish to furnish;
(d)
A notice of the provider’s right, in the event of an adverse ruling by
the Regional Director, to request a formal hearing before an administrative law
judge;
(e)
A notice that should the provider fail to answer (as described in §
30.719) the letter of intent within 30 calendar days of receipt, the Regional
Director may deem the allegations made therein to be true and may order
exclusion of the provider without conducting any further proceedings; and
(f)
The name and address of the OWCP representative who shall be responsible
for receiving the answer from the provider.
§
30.719 What requirements must the
provider’s reply and OWCP’s decision meet?
(a)
The provider’s answer shall be in writing and shall include an answer to
OWCP’s invitation to resign voluntarily.
If the provider does not offer to resign, he or she shall request that a
determination be made upon the existing record and any additional information
provided.
(b)
Should the provider fail to answer the letter of intent within 30
calendar days of receipt, the Regional Director may deem the allegations made
therein to be true and may order exclusion of the provider.
(c) By arrangement with the OWCP
representative, the provider may inspect or request copies of information in
the record at any time prior to the Regional Director’s decision.
(d)
The Regional Director shall issue his or her decision in writing, and
shall send a copy of the decision to the provider by certified mail, return
receipt requested. The decision shall
advise the provider of his or her right to request, within 30 days of the date
of the adverse decision, a formal hearing before an administrative law judge
under the procedures set forth in § 30.720.
The filing of a request for a hearing within the time specified shall
stay the effectiveness of the decision to exclude.
§
30.720 How can an excluded provider
request a hearing?
A request for a hearing shall be sent to
the OWCP representative named pursuant to § 30.718(f) and shall contain:
(a)
A concise notice of the issues on which the provider desires to give
evidence at the hearing;
(b)
Any request for a more definite statement by OWCP;
(c)
Any request for the presentation of oral argument or evidence; and
(d)
Any request for a certification of questions concerning professional
medical standards, medical ethics or medical regulation for an advisory opinion
from a competent recognized professional organization or federal, state or
local regulatory body.
§
30.721 How are hearings assigned and
scheduled?
(a)
If the designated OWCP representative receives a timely request for
hearing, the OWCP representative shall refer the matter to the Chief
Administrative Law Judge of the Department of Labor, who shall assign it for an expedited
hearing. The administrative law judge
assigned to the matter shall consider the request for hearing, act on all
requests therein, and issue a Notice of Hearing and Hearing Schedule for the
conduct of the hearing. A copy of the
hearing notice shall be served on the provider by certified mail, return
receipt requested. The Notice of Hearing
and Hearing Schedule shall include:
(1)
A ruling on each item raised in the request for hearing;
(2)
A schedule for the prompt disposition of all preliminary matters,
including requests for more definite statements and for the certification of
questions to advisory bodies; and
(3) A
scheduled hearing date not less than 30 days after the date the schedule is
issued, and not less than 15 days after the scheduled conclusion of preliminary
matters, provided that the specific time and place of the hearing may be set on
10 days’ notice.
(b)
The purpose of the designation of issues is to provide for an effective
hearing process. The provider is
entitled to be heard on any matter placed in issue by his or her response to
the Notice of Intent to Exclude, and may designate “all issues” for purposes of
hearing. However, a specific designation
of issues is required if the provider wishes to interpose affirmative defenses
or request the certification of questions for an advisory opinion.
§ 30.722
How are subpoenas or advisory opinions obtained?
(a) In exclusion proceedings involving medical
services provided under Part B of the Act only, the provider may apply to the
administrative law judge for the issuance of subpoenas upon a showing of good
cause therefore.
(b) A
certification of a request for an advisory opinion concerning professional
medical standards, medical ethics or medical regulation to a competent
recognized or professional organization or federal, state or local regulatory
agency may be made:
(1)
As to an issue properly designated by the provider, in the sound
discretion of the administrative law judge, provided that the request will not
unduly delay the proceedings;
(2)
By OWCP on its own motion either before or after the institution of
proceedings, and the results thereof shall be made available to the provider at
the time that proceedings are instituted or, if after the proceedings are
instituted, within a reasonable time after receipt. The opinion, if rendered by the organization
or agency, is advisory only and not binding on the administrative law judge.
§
30.723 How will the administrative law
judge conduct the hearing and issue the recommended decision?
(a)
To the extent appropriate, proceedings before the administrative law
judge shall be governed by 29 CFR part 18.
(b)
The administrative law judge shall receive such relevant evidence as may
be adduced at the hearing. Evidence
shall be presented under oath, orally or in the form of written
statements. The administrative law judge
shall consider the Notice and Response, including all pertinent documents
accompanying them, and may also consider any evidence which refers to the
provider or to any claim with respect to which the provider has provided
medical services, hospital services, or medical services and supplies, and such
other evidence as the administrative law judge may determine to be necessary or
useful in evaluating the matter.
(c)
All hearings shall be recorded and the original of the complete
transcript shall become a permanent part of the official record of the
proceedings.
(d)
In conjunction with the hearing, the administrative law judge may:
(1)
Administer oaths; and
(2)
Examine witnesses.
(e)
At the conclusion of the hearing, the administrative law judge shall
issue a written decision and cause it to be served on all parties to the
proceeding, their representatives and OWCP.
§
30.724 How can a party request review by
OWCP of the administrative law judge’s recommended decision?
(a)
Any party adversely affected or aggrieved by the decision of the
administrative law judge may file a petition for discretionary review with the
Director for Energy Employees Occupational Illness Compensation within 30 days
after issuance of such decision. The
administrative
law judge’s decision, however, shall be effective on the date issued and shall
not be stayed except upon order of the Director.
(b)
Review by the Director for Energy Employees Occupational Illness
Compensation shall not be a matter of right but of the sound discretion of the
Director.
(c)
Petitions for discretionary review shall be filed only upon one or more
of the following grounds:
(1)
A finding or conclusion of material fact is not supported by substantial
evidence;
(2)
A necessary legal conclusion is erroneous;
(3)
The decision is contrary to law or to the duly promulgated rules or
decisions of OWCP;
(4)
A substantial question of law, policy, or discretion is involved; or
(5)
A prejudicial error of procedure was committed.
(d)
Each issue shall be separately numbered and plainly and concisely
stated, and shall be supported by detailed citations to the record when
assignments of error are based on the record, and by statutes, regulations or
principal authorities relied upon.
Except for good cause shown, no assignment of error by any party shall
rely on any question of fact or law upon which the administrative law judge had
not been afforded an opportunity to pass.
(e)
A statement in opposition to the petition for discretionary review may
be filed, but such filing shall in no way delay action on the petition.
(f)
If a petition is granted, review shall be limited to the questions
raised by the petition.
(g)
A petition not granted within 20 days after receipt of the petition is
deemed denied.
§
30.725 What are the effects of
non-automatic exclusion?
(a)
OWCP shall give notice of the exclusion of a physician, hospital or
provider of medical services or supplies to:
(1)
All OWCP district offices;
(2)
CMS; and
(3)
All employees who are known to have had treatment, services or supplies
from the excluded provider within the six-month period immediately preceding
the order of exclusion.
(b)
Notwithstanding any exclusion of a physician, hospital, or provider of
medical services or supplies under this subpart, OWCP shall not refuse an
employee reimbursement for any otherwise reimbursable medical treatment,
service or supply if:
(1)
Such treatment, service or supply was rendered in an emergency by an
excluded physician; or
(2)
The employee could not reasonably have been expected to know of such
exclusion.
(c)
An employee who is notified that his or her attending physician has been
excluded shall have a new right to select a qualified physician.
§
30.726 How can an excluded provider be
reinstated?
(a)
If a physician, hospital, or provider of medical services or supplies
has been automatically excluded pursuant to § 30.716, the provider excluded
will automatically be reinstated upon notice to OWCP that the conviction or
exclusion which formed the basis of the automatic exclusion has been reversed
or withdrawn. However, an automatic
reinstatement shall not preclude OWCP from instituting exclusion proceedings
based upon the underlying facts of the matter.
(b)
A physician, hospital, or provider of medical services or supplies
excluded from participation as a result of an order issued pursuant to this
subpart may apply for reinstatement one year after the entry of the order of
exclusion, unless the order expressly provides for a shorter period. An application for reinstatement shall be
addressed to the Director for Energy Employees Occupational Illness Compensation,
and shall contain a concise statement of the basis for the application. The application should be accompanied by
supporting documents and affidavits.
(c)
A request for reinstatement may be accompanied by a request for oral
argument. Oral argument will be allowed
only in unusual circumstances where it will materially aid the decision
process.
(d)
The Director for Energy Employees Occupational Illness Compensation
shall order reinstatement only in instances where such reinstatement is clearly
consistent with the goal of this subpart to protect the EEOICPA program against
fraud and abuse. To satisfy this
requirement the provider must provide reasonable assurances that the basis for
the exclusion will not be repeated.
Subpart I—Wage-Loss Determinations Under
Part E of EEOICPA
General Provisions
§
30.800 What types of wage-loss are
compensable under Part E of EEOICPA?
Years of wage-loss occurring prior to
normal retirement age that are the result of a covered illness contracted by a
covered Part E employee through work-related exposure to a toxic substance at a
Department of Energy facility or a RECA section 5 facility, as appropriate, may
be compensable under Part E of the Act.
Whether years of wage-loss are compensable depends on determinations
with respect to:
(a) The
average annual wage of the employee as determined by OWCP in accordance with §
30.810;
(b)
The percentage of his or her average annual wage that the employee was
able to earn during the calendar year(s) in question as determined by OWCP in
accordance with § 30.811; and
(c)
Whether the employee’s inability to earn at least as much as his or her
average annual wage was due to a covered illness as defined in § 30.5(r).
§
30.801 What special definitions does
OWCP use in connection with Part E wage-loss determinations?
For the purposes of paying compensation
based on wage-loss under Part E of the Act, OWCP will apply the following
definitions:
(a) Average
annual wage means four times the average quarterly wages of a covered Part
E employee for the 12 quarters preceding the quarter during which he or she
first experienced wage-loss due to exposure to a toxic substance at a DOE
facility or RECA section 5 facility, excluding any quarters during which the
employee was unemployed. Because being
“retired” is not equivalent to being “unemployed,” quarters during which an
employee had no wages because he or she was retired will not be excluded from
this calculation.
(b) Normal
retirement age means the age at which a covered Part E employee first
became eligible for unreduced retirement benefits under the Old-Age, Survivors
and Disability Insurance (OASDI) provisions of the Social Security Act. In general, persons born during or before
1937 are eligible for unreduced OASDI retirement benefits at age 65, and that
age increases in monthly increments until it reaches 67, which is the age at
which persons born during or after 1960 become eligible for unreduced OASDI
retirement benefits.
(c) Quarter
means the three-month period January through March, April through June, July
through September, or October through December.
(d) Quarter
during which the employee was unemployed means any quarter during which the covered Part E
employee had $700 (in constant 2005 dollars) or less in wages unless the
quarter is one during which the employee was retired.
(e) Year
of wage-loss means a calendar year during which the covered Part E
employee’s earnings were less than his or her average annual wage, after such
earnings have been adjusted using the Consumer Price Index for All Urban
Consumers (CPI-U), as produced by the Bureau of Labor Statistics, to reflect
their value in the year during which the employee first experienced wage-loss
due to exposure to a toxic substance at a DOE facility or RECA section 5
facility.
Evidence of Wage-Loss
§
30.805 What evidence does OWCP use to
determine a covered Part E employee’s average annual wage and whether he or she
experienced compensable wage-loss under Part E of EEOICPA?
(a)
OWCP may rely on quarterly wages information reported to the Social
Security Administration to establish a covered Part E employee’s presumed
average annual wage (see § 30.810) and the duration and extent of any years of
wage-loss that are compensable under Part E of the Act (see § 30.811). OWCP may also rely on other probative
evidence of a covered Part E employee’s wages, and may ask the claimant for
additional evidence necessary to make this determination, if necessary.
(b)
OWCP also requires the submission of rationalized medical evidence of
sufficient probative value to establish that the period of wage-loss at issue
is causally related to the covered Part E employee’s covered illness.
§ 30.806
May a claimant submit factual evidence in support of a different determination
of average annual wage and/or wage-loss than that found by OWCP?
A claimant who disagrees with the evidence
OWCP has obtained under § 30.805(a) and alleges a different average annual wage
for the covered Part E employee, or that there was a greater duration or extent
of wage-loss, may submit records that were produced in the ordinary course of
business due to the employee’s employment to rebut that evidence, to the extent
that such records are determined to be authentic by OWCP by a preponderance of
the evidence. The average annual wage
and/or wage-loss of the covered Part E employee will then be determined by OWCP
in the exercise of its discretion.
Determinations of Average Annual Wage and
Percentages of Loss
§
30.810 How will OWCP calculate the
average annual wage of a covered Part E employee?
To calculate the average annual wage of a
covered Part E employee as defined in § 30.801(a), OWCP will:
(a)
Aggregate the wages for the twelve quarters that preceded the quarter
during which the covered Part E employee first experienced wage-loss due to
exposure to a toxic substance at a DOE facility or a RECA section 5 facility,
excluding any quarter during which the employee was unemployed;
(b)
Add any additional wages earned by the employee during those same quarters
as evidenced by records described in §§ 30.805(a) and 30.806;
(c) Divide the sum of paragraphs
(a) and (b) of this section by 12 less the number of quarters during which the
employee was unemployed; and
(d) Multiply this figure by four to calculate the
covered Part E employee’s average annual wage.
§
30.811 How will OWCP calculate the
duration and extent of a covered Part E employee’s initial period of compensable
wage-loss?
(a) To
determine the initial calendar years of wage-loss, OWCP will use the evidence
it receives under §§ 30.805 and 30.806 to determine the quarter in which a covered
Part E employee first sustained wage-loss due to exposure to a toxic substance
while engaged in employment at a DOE facility or a RECA section 5 facility, as
appropriate.
(b) OWCP
will then compare the calendar-year wages for that employee, as adjusted, with
the average annual wage determined under § 30.810 for each calendar year beginning
with the calendar year that includes the quarter in which the wage-loss
commenced, and concluding with the last calendar year of wage-loss prior to the
submission of the claim or the calendar year in which the employee reached
normal retirement age (as defined in § 30.801(b), whichever occurred first.
(c) OWCP
will then aggregate separately the number of calendar years of wage-loss in
which the employee’s wages, as adjusted, did not exceed 50 percent of the
average annual wage determined under § 30.810, and the number of calendar years
of wage-loss in which the employee’s wages, as adjusted, exceeded 50 percent of
such average annual wage, but did not exceed 75 percent of such average annual
wage.
(d)
For each calendar year of wage-loss determined under paragraph (c) of
this section during which the employee’s wages did not exceed 50 percent of his
or her average annual wage, OWCP will pay the employee $15,000 as compensation
for wage-loss. For each calendar year of
wage-loss determined under paragraph (c) of this section during which the
employee’s calendar-year wages exceeded 50 percent of his or her average annual
wage but did not exceed 75 percent of such average annual wage, OWCP will pay
the employee $10,000 as compensation for wage-loss.
§
30.812 May a covered Part E employee
claim for subsequent periods of compensable wage-loss?
A covered Part E employee previously
awarded compensation for wage-loss under § 30.811 may file for additional
compensation for wage-loss suffered by the employee during periods subsequent
to a period for which a wage-loss claim for the employee has already been
adjudicated by OWCP. However, no
compensation for wage-loss shall be awarded for any period following the year
during which the covered Part E employee attained normal retirement age for
purposes of the Social Security Act as described in § 30.801(b).
Special Rules for Certain Survivor Claims
Under Part E of EEOICPA
§
30.815 Are there special rules that OWCP
will use to determine the extent of a deceased covered Part E employee’s
compensable wage-loss?
(a) For
purposes of adjudicating a claim of a survivor of a deceased covered Part E employee
only, OWCP will presume that such employee experienced wage-loss for each calendar
year subsequent to the calendar year of his or her death through and including
the calendar year in which the employee would have reached normal retirement
age under the Social Security Act.
During these particular calendar years, OWCP will also presume that the
deceased covered Part E employee’s subsequent calendar-year wages did not
exceed 50 percent of his or her average annual wage as determined under §
30.810.
(b)
Except as provided in paragraph (a) of this section, OWCP will calculate
the wage-loss of a deceased covered Part E employee in conformance with the
provisions of §§ 30.800 through 30.811.
(c) If
OWCP determines that a deceased covered Part E employee had an aggregate of not
less than ten calendar years of adjusted earnings that did not exceed 50
percent of his or her average annual earnings, it will pay the eligible
surviving beneficiary(s) additional compensation (the basic survivor award
payable under section 7385s-3(a)(1) is $125,000) in the amount of $25,000
pursuant to section 7385s-3(a)(2) of the Act.
In the alternative, if OWCP determines that the aggregate number of such
years is not less than 20 years, it will pay the eligible surviving
beneficiary(s) additional compensation in the amount of $50,000 pursuant to
section 7385s-3(a)(3).
Subpart
J—Impairment Benefits Under Part E of EEOICPA
General
Provisions
§ 30.900
Who can receive impairment benefits under Part E?
In order to receive impairment benefits under Part E, the employee must
show that:
(a) He or she is a covered Part E
employee who has been determined to have contracted a covered illness through
exposure to a toxic substance at a DOE facility or a RECA section 5 facility,
as appropriate, pursuant to either §§ 30.210 through 30.215 or §§ 30.230
through 30.232 of these regulations; and
(b) He or she has been determined
to have an impairment, pursuant to the regulations set out in this subpart,
that is the result of the covered illness referred to in paragraph (a) of this
section.
§ 30.901 How does OWCP determine the extent of an employee’s
impairment that is due to a covered illness contracted through exposure to a
toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?
(a) OWCP
will determine the amount of impairment benefits to which an employee is entitled
based on one or more impairment evaluations submitted by physicians. An impairment evaluation shall contain the
physician’s opinion of:
(1)
The extent of whole person impairment of all organs and body functions
of the employee that are compromised or otherwise affected by the employee’s
covered illness or illnesses, which shall be referred to as a “minimum
impairment rating”; and
(2)
the extent of such impairment attributable to an employee’s covered
illness or illnesses.
(b) The
minimum impairment rating shall be determined in accordance with the current
edition of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (AMA’s Guides).
In making impairment benefit determinations, OWCP will only consider medical
reports from physicians who are certified by the relevant medical board and who
satisfy any additional criteria determined by OWCP to be necessary to qualify
to perform impairment evaluations under Part E, including any specific training
in use of the AMA’s Guides, specific training and experience related to
particular conditions and other objective factors.
(c)
OWCP will establish criteria based upon objective factors such as
training and certification that must be met by physicians preparing impairment
evaluations in order for an impairment evaluation to be considered in
determining an impairment award. Such
criteria shall be made available to claimants and the public by OWCP.
(d)
If one or more percentage points of the minimum impairment rating are found
by OWCP to be the result of a covered illness, the employee is entitled to an
award of impairment benefits.
§
30.902 How will OWCP calculate the
amount of the award of impairment benefits that is payable under Part E?
OWCP will multiply the percentage points of
the minimum impairment rating that are the result of the employee’s covered
illness or illnesses by $2,500 to calculate the amount of the award.
Medical Evidence of Impairment
§
30.905 How may an impairment evaluation
be obtained?
(a)
Except as provided in paragraph (b) of this section, OWCP may request
that an employee undergo an evaluation of his or her impairment that specifies the
percentage points that are the result of the employee’s covered illness or illnesses. To be of any probative value, such evaluation
must be performed by a physician who meets the criteria OWCP has identified for
physicians performing impairment evaluations for the pertinent covered illness
or illnesses in accordance with the AMA’s Guides.
(b)
In lieu of submitting an evaluation requested by OWCP under paragraph
(a) of this section, an employee may obtain an impairment evaluation at his own
initiative and submit it to OWCP for consideration. Such an evaluation will be deemed to have sufficient
probative value to be considered in the adjudication of impairment benefits by
OWCP only if:
(1)
It was performed by a physician who meets the criteria identified by
OWCP for the covered illness or illnesses in question;
(2) It
was performed no more than one year before the date that it was received by
OWCP; and
(3)
It conforms to all applicable requirements set out in this part.
§
30.906 Who will pay for an impairment
evaluation?
(a) OWCP
will pay for one impairment evaluation obtained by an employee if it meets the
criteria set out in § 30.905(b), unless it was performed by a physician prior
to the date that the claim for Part E benefits is filed, or obtained for a
claim in which OWCP finds that the employee did not contract a covered illness. At its discretion, OWCP may direct that the employee
undergo additional evaluations at its expense.
OWCP will pay for any such additional evaluations and will reimburse the
employee for any reasonable and necessary costs incident to the evaluations, as
described in §§ 30.404 and 30.412 of this part.
(b)
Except for one impairment evaluation obtained pursuant to § 30.905(b)
and meeting the criteria set out in § 30.905(b)(1), (2) and (3), the employee
must pay for any impairment evaluations not directed by OWCP.
§
30.907 Can an impairment evaluation obtained
by OWCP be challenged prior to issuance of the recommended decision?
(a)
An employee may submit arguments challenging an impairment evaluation,
and/or additional medical evidence of impairment, before the district office
issues a recommended decision on his or her claim. However, the district office will not
consider an additional impairment evaluation, even if it differs from the
impairment evaluation obtained under §§ 30.905 or 30.906, if
it does not meet the criteria listed in § 30.905(b)(1), (2) and (3).
(b)
If the district office obtains an additional impairment evaluation that
differs from the impairment evaluation obtained under §§ 30.905 or 30.906, the
district office will base its recommended determinations regarding impairment
upon the evidence it considers to have the greatest probative value, after
evaluating all relevant evidence of impairment in the record, including
evidence from directed medical examinations that it deems necessary pursuant to
§§ 30.410 and 30.411 of this part.
§ 30.908 How will the FAB evaluate new medical evidence
submitted to challenge the impairment determination in the recommended
decision?
(a)
If an employee submits an additional impairment evaluation that differs
from the impairment evaluation relied upon by the district office, the FAB will
not consider the additional impairment evaluation if it does not meet the
criteria listed in § 30.905(b)(1), (2) and (3).
(b)
The employee shall bear the burden of proving that the additional impairment
evaluation submitted is more probative than the evaluation relied upon by the
district office to determine the employee’s recommended minimum impairment
rating and the percentage points of such rating that are the result of the
employee’s covered illness or illnesses.
(c)
If an employee submits an additional impairment evaluation that differs
from the impairment evaluation relied upon by the district office, the FAB will
review all relevant evidence of impairment in the record, and will base its
determinations regarding impairment upon the evidence it considers to be most
probative. The FAB will determine the
minimum impairment rating and the percentage points of the rating that are the
result of the employee’s covered illness or illnesses after it has evaluated
all relevant evidence and argument in the record.
Ratable Medical Impairments
§
30.910 Will an impairment that cannot be
assigned a numerical percentage using the AMA’s Guides be included in the
impairment rating?
(a)
An impairment that cannot be assigned a numerical impairment percentage
using the AMA’s Guides will not be included in the employee’s impairment
rating.
(b)
A mental impairment that does not originate from a documented physical
dysfunction of the nervous system, and cannot be assigned a numerical
percentage using the AMA’s Guides, will not be included in the
impairment rating for the employee.
Mental impairments that are due to documented physical dysfunctions of
the nervous system can be assigned numerical percentages using the AMA’s Guides
and will be included in the rating.
§
30.911 Does maximum medical improvement always
have to be reached for an impairment to be included in the impairment rating?
(a)
An impairment that is the result of a covered illness will be included
in the employee’s impairment rating determined by OWCP under § 30.901 only if
OWCP concludes that the impairment has reached maximum medical improvement, which
means that it is well-stabilized and unlikely to change substantially with or
without medical treatment.
(b)
Notwithstanding paragraph (a) of this section, if OWCP finds that an
employee’s covered illness is in the terminal stages, based upon probative
medical evidence, an impairment that results from such covered illness will be
included in the impairment rating for the employee even if it has not reached
maximum medical improvement.
§
30.912 Can a covered Part E employee
receive benefits for additional impairment
following an award of such benefits by OWCP?
A covered Part E employee previously
awarded impairment benefits by OWCP may file a claim for additional impairment
benefits. Such claim must be based on an
increase in the impairment rating that is the result of the covered illness or
illnesses from the impairment rating that formed the basis for the last award
of such benefits by OWCP. OWCP will only
adjudicate claims for such an increased rating that are filed at least two years
from the date of the last award of impairment benefits. However, OWCP will not wait two years before
it will adjudicate a claim for additional impairment that is based on an
allegation that the employee sustained a new covered illness.
Signed
at
Victoria
A. Lipnic,
Assistant
Secretary of Labor for Employment
Standards
[1] From Table
I-14, Lifetime Risk (Percent) of Being Diagnosed with Cancer by Site, Race
and Sex, in the SEER Cancer Statistics Review 1975-2000, published by the
National Cancer Institute.