Performance of Functions Under This Chapter; Claims for Compensation
Under the Energy Employees Occupational Illness Compensation Program
Act of 2000, as Amended; Final Rule [12/26/2002]
Volume 67, Number 248, Page 78873-78910
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Part II
Department of Labor
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Office of Workers' Compensation Programs
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20 CFR Parts 1 and 30
Performance of Functions Under This Chapter; Claims for Compensation
Under the Energy Employees Occupational Illness Compensation Program
Act of 2000, as Amended; Final Rule
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 1 and 30
RIN 1215-AB32
Performance of Functions Under This Chapter; Claims for
Compensation Under the Energy Employees Occupational Illness
Compensation Program Act of 2000, as Amended
AGENCY: Office of Workers' Compensation Programs, Employment Standards
Administration, Labor.
ACTION: Final rule.
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SUMMARY: On May 25, 2001, the Department of Labor (DOL) published
interim final regulations that governed its responsibilities under the
Energy Employees Occupational Illness Compensation Program Act of 2000,
as amended (EEOICPA or Act). The Act provides 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. The Act also provides smaller lump-sum payments and
medical benefits to individuals found to be eligible for an award under
section 5 of the Radiation Exposure Compensation Act, as amended
(RECA), and where applicable, to their survivors.
At the same time the Department published the interim final
regulations, it also invited written comments and advice from
interested parties regarding possible changes to those regulations.
This document amends the interim final regulations based on comments
that the Department received, and also includes changes necessary to
conform the regulations to several technical amendments to the EEOICPA
that Congress enacted after the interim final regulations were
published.
DATES: Effective Date: This rule will be effective on February 24,
2003, and will apply to all claims filed on or after that date. This
rule will also apply to any claims that are pending on February 24,
2003.
Compliance Date: Affected parties do not have to comply with the
new information collection requirements in Sec. Sec. 30.112 and 30.213
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. 1215-197.
Comments: Written comments on the new information collection
requirements in Sec. Sec. 30.112 and 30.213 must be received by
January 27, 2003.
ADDRESSES: Written comments on the new information collection
requirements in Sec. Sec. 30.112 and 30.213 should be sent to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for Employment Standards
Administration, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of
Workers' Compensation Programs, Employment Standards Administration,
U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW.,
Washington, DC 20210, Telephone: 202-693-0036 (this is not a toll-free
number).
SUPPLEMENTARY INFORMATION: The Department of Labor's interim final
regulations implementing its responsibilities under the Energy
Employees Occupational Illness Compensation Program Act of 2000, as
amended (42 U.S.C. 7384 et seq.), were published in the Federal
Register on May 25, 2001 (66 FR 28948). The interim final rule took
effect on July 24, 2001 and originally included a 90-day period for
comment. On September 12, 2001, the Department retroactively reopened
the comment period on the interim final rule and extended the period
for comment through September 24, 2001 (66 FR 47382). During this
comment period, the Department received 216 timely comments: Six from
congressional representatives; 10 from labor organizations; 6 from
physicians; seven from attorneys; 13 from advocacy groups; one from a
lay representative; one from the City Council of the City of Niagara
Falls, New York; one from the Department of Defense; and 171 from
individuals. The Department also received untimely comments from two
advocacy groups and four individuals; the points they raised were also
raised by the timely commenters. A majority of the commenters addressed
the issue of survivor benefits (out of the 143 commenters that
addressed this issue, 85 commenters addressed this issue alone). Other
commenters addressed a range of issues, including coverage for
particular illnesses, the administrative claims process, entitlement
qualifications, and the extent of medical benefits provided under the
program. The Department's section-by-section analysis of the timely
comments it received is set forth below (see sections I and II).
Some minor changes have been made to the interim final regulations
that did not result from any comments. One such change is the addition
of new paragraph (b) to Sec. 30.15 to recognize that unpaid lump-sum
payments of compensation under the Act may be subject to garnishment to
collect overdue alimony and child support. A second change is the
addition of a clause in Sec. 30.115(a) that exempts any non-radiogenic
cancer listed by the Department of Health and Human Services (HHS) in
42 CFR 81.30 from referral to HHS for dose reconstruction, because that
regulation affirmatively directs DOL to ``assign a probability of
causation of zero'' to any such cancers (and therefore a referral for
dose reconstruction would serve no useful purpose); this exemption
replaces the one in former Sec. 30.115(b). In addition, Sec. 30.213
has been divided into two sections to better reflect the two methods
the Office of Workers' Compensation Programs (OWCP) uses to develop
cancer claims. Similarly, Sec. 30.505 has been divided into two
sections to distinguish the pre-payment actions OWCP will take before
it pays compensation from the payment mechanisms it will use to make
such payments. To accomplish this, paragraphs (b), (c) and (d) from
former Sec. 30.505 are retained in final Sec. 30.505, and the
remaining paragraphs from former Sec. 30.505 are now in final Sec.
30.506.
This rule also corrects several sections of the interim final
regulations to conform the final regulations with the technical
amendments to sections 7384l, 7384q, 7384r, 7384s, 7384u, 7385d, and
7385g of the Act made by section 2403(a) of Public Law 107-20, 115
Stat. 155, 175 (July 24, 2001), and by section 3151(a) of Public Law
107-107, 115 Stat. 1012, 1371 (December 28, 2001). As a result of these
corrections, Sec. 30.5 now includes both the current list of specified
cancers and the current method of establishing chronic silicosis,
Sec. Sec. 30.500 through 30.502 reflect the current statutory
provisions on survivors, Sec. 30.603 has been added to reflect the
amended attorney fee limitation provision, and Sec. Sec. 30.615 and
30.616 have been rewritten as Sec. Sec. 30.615 through 30.619 to
properly reflect the amended election of remedies provision. Section
2403(b) of Public Law 107-20 provided that the addition of ``renal
cancers'' to the list of specified
[[Page 78875]]
cancers took effect on October 1, 2001, and section 3151(a)(4)(D) of
Public Law 107-107 provided that the changes to the survivor provisions
were retroactive to July 1, 2001. The remainder of the amendments to
the Act were effective as of December 28, 2001.
When publishing a final rule following a comment period, it is
customary to publish only the changes that have been made to the rule;
however, in order to be more user-friendly, the Department is
publishing the entire rule, including the parts that have not been
changed. By doing so, only one document containing all of the
regulations and commentary needs to be consulted rather than multiple
documents.
I. Comments on the Interim Final Regulations
The section numbers used in the headings of the following analysis
are those that were used in the interim final regulations. Unless
otherwise stated, the section numbers in the text of the analysis refer
to the numbering used for the final regulations. No comments were
received with respect to part 1.
Section 30.2
One advocacy group suggested that OWCP provide EEOICPA claimants
with State workers' compensation claim forms in addition to EEOICPA
claim forms, as part of OWCP's role in the EEOICPA claim process. This
suggestion was not adopted because section 7385o of the EEOICPA names
DOE as the Federal entity authorized to enter into an agreement with
the chief executive officer of a State, to establish procedures, and to
administer the submission and adjudication of such claims. This
separation of functions is also found in Executive Order 13179
(``Providing Compensation to America's Nuclear Weapons Workers'') of
December 7, 2000 (65 FR 77487). However, DOL and DOE have established
joint Resource Centers to provide claimants with assistance,
information and the forms necessary for filing both Federal and State
claims.
Section 30.5(bb)
One advocacy group suggested that the term ``physician'' should be
expanded to specifically include dermatologists and other specialists
in skin cancers. The suggestion was not adopted because these medical
professionals are already included in the broad, non-exclusive
definition of ``physician'' that appears in this section.
Section 30.5(cc)
One physician suggested that the definition of ``qualified
physician'' is too broad and should be changed. This suggestion was not
adopted because the term in question is only used to distinguish
physicians who may provide medical services to covered employees from
those who have been excluded from participation in the program in
accordance with the procedures described in Sec. Sec. 30.715 through
30.726 of these regulations. The term does not imply anything regarding
the professional qualifications of a physician.
Section 30.5(dd)
One commenter requested that OWCP clarify if lung cancer has a
required latency period as one of the specified cancers, while two
advocacy groups disagreed with the required latency periods for those
cancers designated in section 4(b)(2) of the Radiation Exposure
Compensation Act, as amended (42 U.S.C. 2210 note). These two advocacy
groups also requested that OWCP add ``renal cancers'' to the list of
specified cancers to reflect the amendment to this provision of the Act
made by section 2403(a) of Public Law 107-20. This section has been
rewritten to clarify that as a specified cancer, lung cancer does not
have a required latency period. However, the latency periods that are
derived from the RECA are set by statute; OWCP does not have the
authority to alter statutory provisions. The rewritten section also
reflects the addition of renal cancers to the list of specified
cancers, as well as the statutory modification of the provision for
leukemia that was made by section 3151(a)(1) of Public Law 107-107.
Section 30.16
Two advocacy groups submitted comments asking that anti-retaliation
provisions be included in the final regulations to protect claimants
who file claims under the Act from reprisal in the workplace. OWCP does
not have authority to implement such provisions by regulation in the
absence of statutory authorization supporting such action. Moreover,
other workplace discrimination legislation already exists to protect
claimants from any retaliatory actions for filing a claim under the
Act. The suggestion was therefore not adopted.
Sections 30.100(a) and 30.101(a)
One advocacy group disagreed with the requirement that section 5
RECA claimants must file an actual ``claim'' with OWCP before they can
receive the smaller $50,000.00 lump-sum payments available under
section 7384u(a) of the Act. However, unless it receives a ``claim''
for benefits under the Act, OWCP has no way of knowing who might be
entitled to such benefits since it does not have access to the RECA
claims information available to DOJ. Therefore, the suggestion to drop
the requirement for filing a claim was not adopted.
One congressional representative asked if there was a time limit
for filing claims of July 31, 2001. Although sections 7384s, 7384t and
7384u of the Act did not come into effect until July 31, 2001, there is
no time limitation for filing claims in either the Act or the
regulations, and claimants need not file their claims with OWCP prior
to a particular date in order to be entitled to benefits. However,
pursuant to section 7384t(d) of the Act, claimants authorized to
receive medical benefits under the Act may only receive those benefits
for the period subsequent to the date they submitted a claim.
Sections 30.100(c)(2) and 30.101(d)(2)
Three congressional representatives, seven labor organizations, six
advocacy groups, two physicians, and three individuals requested that
OWCP, under section 7384v of the Act, provide claimants with assistance
in securing medical testing and diagnostic services by paying for or
reimbursing for such testing and services. OWCP has made a policy
decision to exercise its discretion to provide assistance by providing
individual claimants with information and facilitating development of
their EEOICPA claims. OWCP will not provide direct financial assistance
for medical tests or diagnostic services because doing so would be
financially impractical, would not be administratively feasible, and,
in some instances, would duplicate services available under programs
established by DOE or other employers that provide screening and
medical monitoring of substantial numbers of former employees.
Furthermore, evaluating numerous requests could substantially delay the
program's overall claims adjudication process, thereby delaying payment
of benefits in other deserving cases. Administrative difficulties would
be particularly acute in regard to the wide variety of possible
radiogenic cancers, since appropriate methods of diagnosis for these
diseases can be controversial. Thus, the suggestion to pay for medical
tests and diagnostic services was not adopted. However, OWCP will pay
reasonable and necessary medical expenses, which could include tests
and diagnostic services, in those cases that are
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accepted, so long as the expenses were incurred subsequent to the
filing of the claim. Language indicating that OWCP will provide
information on the types and availability of medical testing and
diagnostic services has been added to Sec. 30.2(a).
Sections 30.105 and 30.106
Three commenters (one of these in two separate comments) questioned
the reliability of the employment data to be provided by DOE in
response to an alleged employment history provided in support of a
claim, and a fourth commenter inquired about situations where DOE would
not be able to verify an alleged employment history due to missing or
incomplete records. OWCP anticipates that DOE will be able to fulfill
its responsibilities under Sec. Sec. 30.105 and 30.106 of the
regulations in the majority of claims, and will work with DOE in an
effort to obtain employment data sufficient to adjudicate those claims
for which DOE may not have ready access to work records. To provide
further guidance to claimants who may fall into this second group, new
Sec. 30.112 has been added to illustrate alternative methods of
establishing the requisite period of covered employment in the absence
of supporting DOE data. Former Sec. 30.112 from the interim final rule
has been renumbered as Sec. 30.113 to accommodate this new section.
Section 30.111
Nine commenters, five labor organizations, seven advocacy groups,
one physician and one congressional representative submitted a total of
24 comments on the collection and assessment of employment and medical
evidence, as well as the assistance to be given by OWCP in that
process. In order to meet its statutory responsibility to provide
assistance to claimants, OWCP has held public informational meetings
around the country. With DOE, OWCP has also established and staffed ten
resource centers near large populations of potential claimants to
maximize accessibility, and staff from these resource centers
periodically travel to other areas where a significant number of
potential claimants might reside. Finally, Sec. 30.111 provides that
OWCP will notify claimants of any deficiencies in their claims and
provide an opportunity to correct such deficiencies.
In response to various comments received about Sec. 30.111, the
regulations have been revised by adding a new Sec. 30.114 and
clarifying former Sec. 30.112 (renumbered as Sec. 30.113 in
accordance with the revisions noted above) to give additional guidance
as to what type of evidence is required and how that evidence will be
evaluated. Although the claimant's evidentiary burden of proof has not
been changed, the regulations more clearly reflect the flexible
standard for considering a claimant's evidence in view of the fact that
there may be gaps in the record. As noted in Sec. Sec. 30.105 and
30.106, covered employment is verified by DOE. It is necessary for DOE
to have access to worker records to perform this task, but given the
size and scope of the data it is impractical to impose restrictive
timeframes on DOE to complete the verification process.
Section 30.115
Three labor organizations, one advocacy group and one commenter
suggested that OWCP reconsider the use of dose reconstruction. ``Dose
reconstruction'' is the term used to describe the process by which HHS
will estimate an employee's radiation exposure history. The estimate
produced in the dose reconstruction process is used by OWCP to
determine whether an employee's cancer is at least as likely as not
related to the employee's exposure to radiation at a covered facility.
For claims seeking coverage for cancer based on the Special Exposure
Cohort (SEC), no dose reconstruction is performed because coverage is
presumed when a member of the SEC sustains a specified cancer after
beginning employment at a covered facility. Section 7384n of the Act
specifically requires that a determination concerning coverage of any
cancer not subject to the SEC provisions be based upon guidelines
established to determine the probability that a cancer was caused by
exposure to radiation at a covered facility. That section also requires
that a determination regarding the probability of causation incorporate
the results of the dose reconstruction. Accordingly, since OWCP is not
authorized to reconsider the use of dose reconstruction, the suggestion
was not adopted. However, and as noted above, Sec. 30.115 has been
revised slightly to conform the dose reconstruction referral process
with HHS's regulations at 42 CFR part 81.
Section 30.207
One physician, one advocacy group, one labor organization and one
individual submitted five comments on the manner of diagnosing covered
beryllium illnesses. The suggested changes to Sec. 30.207 were not
adopted because Sec. 30.207 mirrors the language of section 7384l(8)
and (13) of the Act for establishing beryllium illnesses; OWCP may not
vary the requirements of these provisions by regulation.
Section 30.213
As noted above, Sec. 30.213 has been divided for clarity into two
sections to reflect the two methods to claim benefits for cancer, and
the contents have been rearranged slightly. Section 30.213 in the
interim final rule has been renumbered as Sec. 30.214, new Sec.
30.212 now specifically addresses claims for cancer not based on
membership in the SEC, and Sec. 30.212 in the interim final rule has
been renumbered as Sec. 30.213.
Two advocacy groups, one labor organization, and two commenters
disagreed with the specific eligibility cutoff date for the members of
the SEC who were exposed to ionizing radiation in the performance of
duty related to one of three specified underground nuclear tests on
Amchitka Island, Alaska. Five other commenters (one of whom is a
physician), the same labor organization, one of the advocacy groups,
and one of the two prior commenters also generally questioned the
limited definition of who can qualify as a member of the SEC and
therefore bypass the entire dose reconstruction process at HHS. The
criteria for eligibility of members of the SEC set out in Sec. 30.213
(renumbered as Sec. 30.214 in accordance with the revision noted
above) are governed by the explicit terms of section 7384l(14) of the
Act, and may not be modified in any manner by regulation.
Section 30.214(b)
Two labor organizations and an advocacy group disagreed with the
requirement in Sec. 30.214(b) (renumbered as Sec. 30.215(b) in
accordance with the revision noted above) that employees seeking
medical benefits for a consequential injury of a covered cancer submit
rationalized medical evidence of a causal relationship between the
consequential injury and the covered cancer. However, this evidentiary
requirement is commonplace among State and Federal workers'
compensation systems and does not exceed what is required to obtain
these benefits under those other systems. OWCP further notes that under
the Act, consequential injuries do not have any explicit diagnostic
requirements that must be met (as do the covered occupational
illnesses). Therefore, OWCP concludes that the current regulatory
requirement for rationalized medical evidence of a causal relationship
is reasonable and necessary, and the suggested changes have not been
adopted.
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Sections 30.215, 30.217 and 30.220
One lay representative suggested that OWCP consider adding a
provision for coverage of consequential injuries of the various section
5 RECA illnesses. The interim final rule included regulatory provisions
governing consequential injuries of covered cancers and covered
beryllium diseases, but did not also specifically reference
consequential injuries of either chronic silicosis or the section 5
RECA illnesses in Sec. Sec. 30.215, 30.217 or 30.220. In order to
clarify that medical benefits are available for consequential injuries
of all the occupational illnesses covered under the Act, these sections
(renumbered as Sec. Sec. 30.220, 30.222 and 30.225 in accordance with
the revisions noted above) have been revised, and new Sec. 30.226 has
been added to address the type of medical evidence that will be needed
to establish a causal relationship between a consequential injury and a
section 5 RECA illness.
Section 30.300
In the absence of any language mandating a particular adjudicatory
structure in the Act, the interim final regulations established the
current structure. Four congressional representatives, six labor
organizations, seven advocacy groups, and two commenters (one of whom
is a physician) submitted a total of 28 comments on the current
structure for adjudicating claims filed under the EEOICPA. One
congressional representative, one labor organization and four advocacy
groups asked that OWCP devise a more elaborate administrative review
process, while the other three congressional representatives, one of
the four advocacy groups, and two other advocacy groups specifically
recommended that administrative law judges be part of the adjudication
process. Finally, one of the congressional representatives, all six
labor organizations, all seven advocacy groups, and both commenters
suggested that OWCP should add an independent review body to the
adjudicatory process.
At the time that the interim final rule was issued, OWCP decided
that it would be most efficient and beneficial to claimants to provide
an expeditious administrative claims process that would allow claimants
to seek review of adverse final agency decisions on their claims in
Federal court without delay. This process provides claimants with an
opportunity to challenge a recommended decision before a Final
Adjudication Branch (FAB) reviewer, either through an oral hearing or
through a review of the written record. Either mechanism allows a
claimant to submit additional evidence or arguments to the FAB reviewer
in a non-adversarial forum. This is unlike a proceeding before an
administrative law judge where an adverse party would have an
opportunity to object to the admission of evidence or provide evidence
or arguments to refute the claimant's contentions. If the claimant
disagrees with the final agency decision, he or she can seek review of
the decision from a Federal court without delay. OWCP believes that
utilizing administrative law judges or an independent review body would
unnecessarily complicate and delay the adjudication process to the
detriment of claimants. None of the commenters provided a convincing
justification to reverse OWCP's initial decision concerning this
adjudicatory structure, and therefore the suggestions were not adopted.
Section 30.305
Four labor organizations, two advocacy groups, one physician, and
three individuals suggested that time limits be placed on the claim
adjudication process. Time limits are currently in place with respect
to recommended decisions pending either a hearing or a review of the
written record before the FAB in Sec. 30.316(c). These time limits
provide that any recommended decision pending either a hearing or a
review of the written record at the FAB for more than a specified
period will be deemed to be a final decision of the FAB. Due to the
wide range of claim types and the complexities involved in developing
and establishing certain of these claims, along with the fact that
Federal agencies other than OWCP are involved in the claim process,
OWCP has decided against establishing strict time limits to govern the
complete adjudicatory process, and did not adopt the suggestion.
However, OWCP has established performance goals under the Government
Performance and Results Act to monitor the efficiency of the claims
adjudication process.
Sections 30.306 and 30.316(b)
Seven labor organizations, three advocacy groups and one physician
suggested that the regulations require detailed findings and grounds in
all recommended decisions denying a claim and in any final decision
issued by the FAB. However, Sec. 30.306 already requires that all
recommended decisions contain findings of fact and conclusions of law;
this existing requirement provides a claimant with the detailed
findings requested by the commenters. Therefore, further descriptions
of these requirements for final decisions of the FAB does not appear
necessary, and the suggestions were not adopted.
Section 30.310(b)
One congressional representative, three labor organizations, and
three advocacy groups voiced concerns about the limited time period for
raising objections to findings of fact and/or conclusions of law
contained in a recommended decision with the FAB. The 60-day period was
designed to expedite the adjudicatory process and thus it has not been
deemed necessary to modify this time frame. However, to address the
concerns raised by these commenters, OWCP has provided in new Sec.
30.320 a procedure for reopening FAB decisions at any time in the event
that new evidence is discovered or circumstances have changed. In
addition, OWCP has modified Sec. 30.310(b) by removing the requirement
that the claimant raise a specific objection to a particular finding of
fact or conclusion of law as this requirement has not proved effective
in practice. Sections 30.312 and 30.314(b) have also been revised to
remove similar requirements for specific objections in those two
sections.
One of these three advocacy groups also recommended that the FAB
provide hearings to all claimants automatically. Removing the
requirement that a claimant raise a specific objection will allow any
claimant who is dissatisfied with a recommended decision to receive a
hearing upon a timely request. To date, less than 2% of claimants who
have received a recommended decision have requested hearings before the
FAB. Therefore, it does not seem reasonable to require OWCP to devote
the resources necessary to provide hearings to the vast majority of
claimants who either request a review of the written record or do not
object to the recommended decision. Accordingly, since the suggestion
to provide hearings to every claimant automatically would hamper the
ability of the FAB to issue final decisions on claims, especially on
claims that have been accepted for the payment of benefits, it was not
adopted.
Section 30.311(a)
One congressional representative disagreed with the provision in
Sec. 30.311(a) directing the FAB to issue a decision accepting the
recommendation of the district office if the claimant did not file
timely and specific objections to findings of fact and/or conclusions
of law contained in the recommended decision, even if the claimant had
[[Page 78878]]
requested a hearing. Consistent with the revision to Sec. 30.310(b),
this section has been revised to remove the requirement for a specific
objection. As a result, the FAB will now issue a decision that accepts
the recommendation of the district office if the claimant neither
requests a hearing nor submits a general objection to the recommended
decision within the requisite time period.
Sections 30.313 and 30.314(a)
Five labor organizations, four advocacy groups, and one physician
suggested that EEOICPA claimants should have the right to a formal
adjudicative hearing to challenge findings and build a record for
possible judicial review. The administrative claims process within the
Department is intended to be non-adversarial and has been structured as
an informal, streamlined process allowing for the prompt adjudication
of claims. The regulations in Sec. Sec. 30.313 and 30.314(a) allow
claimants to introduce additional written evidence and/or testimony and
give FAB reviewers the discretion to conduct hearings in a manner that
ensures that a complete record is made sufficient for judicial review.
Since there is nothing in the Act that requires formal adjudicative
hearings, it does not appear necessary to create a more elaborate and
less expeditious administrative claims process, as has been requested.
Section 30.314
Four labor organizations and three advocacy groups (one of these in
two separate comments) suggested that Sec. 30.314(a), which provides
that the FAB reviewer retains complete discretion to set the time and
place of the hearing, also include a requirement that the reviewer
shall attempt to schedule the hearing at a location that is convenient
for the claimant. The current practice of OWCP is to schedule the FAB
hearing, whenever possible, at a location that is within a reasonable
distance from the claimant's residence. Based on the above comments,
OWCP is persuaded that this policy should be set forth with more
specificity in the rule, and Sec. 30.314(a) has been revised
accordingly.
One of these four labor organizations, the three advocacy groups,
one congressional representative, and a fourth advocacy group also
suggested that FAB hearing procedures be spelled out in the
regulations. However, Sec. 30.314 is purposefully formulated to permit
maximum flexibility and gives the FAB reviewer complete discretion,
among other things, to schedule and conduct hearings in a fair and
expedient manner. Since the claims adjudication process is non-
adversarial and the informal FAB hearing process is working
effectively, OWCP sees no reason to revise Sec. 30.314 to create a
formal and less flexible hearing process.
Two of the first three advocacy groups questioned the requirement
in Sec. 30.314(e) that the claimant must submit his or her comments
regarding the hearing transcript to the FAB reviewer within 20 days
from the date that the transcript is sent to the claimant. The
commenters suggested that this requirement be changed to within 20 days
from the date that the transcript is received by the claimant, citing
the possibility of slow mail. A clear fixed date set by OWCP is
necessary to ensure that no bottlenecks are created in the claims
adjudication process, and thus, the above suggestion has not been
adopted.
Section 30.316(c)
A congressional representative, a labor organization and an
advocacy group expressed concerns about the procedural mechanism by
which any recommended decision that is still pending at the FAB for
more than one year is deemed to be a final decision of the FAB. The
labor organization believed that the FAB could take advantage of the
mechanism by intentionally delaying issuing final decisions on claims,
thereby rendering the opportunity to raise objections to the
recommended decision moot. However, this mechanism actually protects
claimants against excessive delay by the FAB because it ensures that
claimants receive a final agency decision on their claims within a time
certain, and permits them to seek judicial review, within a reasonable
time following the issuance of a recommended decision. Further, as
noted above, OWCP has established performance goals under the
Government Performance and Results Act to monitor the efficiency of the
claims adjudication process, and those performance goals also cover the
activities of the FAB. There have been no demonstrated incidents of
delay and therefore it does not appear necessary to modify this
mechanism. Nevertheless, to more accurately reflect the FAB's current
performance goals for issuing final decisions and to accommodate the
changes regarding specific objections described above, the event that
will commence the one-year period has been changed from the receipt of
the case file from the district office to the receipt of the written
submission described in Sec. 30.310, or the expiration of the 60-day
period in that same section in the absence of a written submission.
Section 30.318
Four congressional representatives, six labor organizations, two
advocacy groups and one physician suggested that the regulations should
permit claimants to challenge the dose reconstruction methodology
before the FAB. This suggestion was not adopted because both the
development and implementation of the dose reconstruction methodology
have been established pursuant to regulations promulgated by HHS (42
CFR part 82) and are outside the scope of the Department's authority
under E.O. 13179.
Section 30.320
One congressional representative, six labor organizations, five
advocacy groups, and two physicians disagreed with the one-year period
for claimants to seek modification set out in Sec. 30.320, noting that
it is likely that after the expiration of such period, there will be
changes in the science related to dose reconstruction and the
disclosure of previously unavailable exposure and employment
information that might justify reopening of the claim. In addition, the
same six labor organizations, three of the five advocacy groups, and
one of the two physicians asserted that reopening of the claim or the
filing of a new claim might be warranted where a claimant with a cancer
claim is denied benefits but at a later date falls within a class of
employees that is added to the SEC, as contemplated by section 7384q(b)
of the EEOICPA. OWCP is persuaded by these comments; therefore, Sec.
30.320 has been revised to abandon the one-year modification limitation
for claimants. Revised Sec. 30.320(b) allows claimants to ask OWCP to
reopen their claims at any time if they submit new and material
evidence of covered employment or exposure to radiation, beryllium or
silica; or if they identify a material change in the probability of
causation guidelines, a material change in the dose reconstruction
methods or a material addition of a class of employees to the SEC that
occurred after the FAB issued a final decision on their claim. If the
required showing of materiality is met, the claim will be reopened and
returned to the district office for a new determination on the merits
of the claim. OWCP will closely coordinate with HHS and reopen cases on
the Director's own authority under revised Sec. 30.320(a) when factors
such as changes in HHS methodology or the discovery of new relevant
information warrants doing so (in those cases, it will
[[Page 78879]]
not be necessary for claimants to take any action to receive a new
decision).
Section 30.400
One advocacy group and one commenter suggested that OWCP reimburse
employees for medical expenses they incurred due to a covered
occupational illness prior to the date they filed a claim for benefits
with OWCP, while a lay representative generally urged that a broad
scope of medical benefits should be made available to covered
employees. The availability of medical benefits is governed by section
7384t of the Act, which explicitly states that eligibility to receive
such benefits will commence no earlier than the date on which the claim
is filed. Therefore, OWCP cannot alter this statutory limitation
through regulation. In addition, Sec. 30.400 already notes the broad
scope of medical benefits that are payable under the Act, and provides
that a covered employee is entitled to receive all medical treatment
prescribed or recommended by a qualified physician that OWCP considers
necessary to treat his or her covered illness. In light of this, it
does not appear necessary to modify Sec. 30.400 as requested.
Three other commenters suggested that OWCP issue medical benefits
identification cards (similar to health insurance identification cards)
to covered employees, to make it easier for such employees to obtain
medical benefits. Subsequent to the promulgation of the interim final
regulations, OWCP decided to utilize such cards. However, because
medical benefits are only available for conditions covered by the Act,
rather than for almost all conditions as is the case with health
insurance, a covered employee's medical benefits identification card
only lists the specific condition(s) for which medical benefits are
available for that covered employee.
Section 30.403
Four labor organizations, four advocacy groups and one commenter
suggested that family members be compensated for providing personal
care services. Section 30.403 does not preclude family members from
being paid for providing personal care services as long as they have
received the necessary training. This will help ensure that covered
employees are provided proper care for any medical conditions that are
covered by the Act. Therefore, the regulation has not been changed.
Section 30.404
Four labor organizations, one advocacy group, one physician, and
four individuals disagreed with the general travel limit of 25 miles
set forth in Sec. 30.404, noting that employees who reside in remote
geographic areas where medical services are limited, or who require the
services of a small number of recognized medical specialists, should
not be denied reimbursement for travel of greater distances to obtain
appropriate medical treatment. While OWCP's current policy is to take
into consideration such demonstrated needs of individual claimants, the
above comments indicate that there is a need to clarify the current
rule. As modified, Sec. 30.404(a) establishes a roundtrip distance of
up to 200 miles as what OWCP will generally consider a reasonable
distance to travel. Section 30.404(b) further provides that if travel
of more than 200 miles is contemplated, or if air travel or overnight
accommodations will be needed, the employee must request prior approval
from OWCP demonstrating the circumstances and necessity for such
travel.
Three labor organizations stated that Sec. 30.404 should include
information on where employees can obtain the standard form for
requesting medical travel refunds. Section 30.404(c) indicates that the
form can be obtained from OWCP.
One advocacy group and one individual commenter indicated that OWCP
should pay the travel expenses of a person who accompanies an employee
on a trip to obtain medical treatment. Under Sec. 30.404, OWCP has the
discretion to determine what travel expenses are ``reasonable and
necessary,'' and prefers to maintain the flexibility to make such
determinations on a case-by-case basis. Therefore, no change was made
to this section.
One individual asserted that OWCP should compensate employees for
any lost wages resulting from absences from work to undergo diagnostic
testing, and other persons for any lost wages resulting from absences
from work in order to accompany employees on medical visits to obtain
diagnostic testing. As set forth in Sec. 30.412 of the regulations,
OWCP provides reimbursement for actual wages lost by employees for the
time needed to submit to a second opinion or referee examination
required by OWCP. As for the lost wages of persons accompanying
employees, OWCP has the discretion under Sec. 30.404 to determine if
these constitute ``reasonable and necessary'' travel expenses and
prefers to maintain the flexibility to make such determinations in
individual situations. As a result, no change was made to this section.
Section 30.410
Four labor organizations and two advocacy groups did not believe
that OWCP should have the authority to refer claimants to multiple
``second opinion'' medical examinations by physicians of its choosing,
even at the government's expense. However, this authority is necessary
to enable OWCP to obtain additional medical evidence in situations
where a claimant has submitted some medical evidence in support of a
claim, but the evidence is of insufficient probative value to allow the
claimant to meet his or her burden of proof. If the claimant could not
submit the additional evidence necessary to meet this burden, and OWCP
could not obtain it through a second opinion examination, OWCP would
have to deny the claim. Since it is OWCP's policy to assist claimants
in the development of their claims, the authority to refer claimants
for second opinion medical examinations is one of the tools OWCP needs
to efficiently carry out this policy.
Three of these same four labor organizations and two different
advocacy groups also suggested that claimants should be allowed to have
someone other than a physician of their choosing present during a
second opinion examination. The restriction on who may accompany
claimants during these examinations was intended to minimize the
possibility of disruptions, but given the nature of the claimant
population and the likelihood of this occurring, OWCP is persuaded that
the restriction is not necessary for all second opinion referrals.
However, OWCP will retain the restriction for use if the person
accompanying the claimant disrupts the examination and OWCP has to
refer the claimant to a different physician for the requested second
opinion examination.
Section 30.411
Three congressional representatives, five labor organizations, four
advocacy groups and three commenters (two of whom are physicians)
suggested that OWCP utilize a joint naming process whereby the claimant
and OWCP would agree on a physician to perform a referee examination
needed to resolve a conflict in the medical evidence. OWCP does not see
the utility of this suggestion, especially since the EEOICPA claims
adjudication process is non-adversarial and OWCP does not oppose a
claim for benefits. Furthermore, this more
[[Page 78880]]
complex manner of selecting physicians to perform referee examinations
would add to the length of time necessary to adjudicate the claim
without providing any tangible benefit. Accordingly, the suggestion was
not adopted, and OWCP will continue to select all physicians performing
referee examinations from a pool of specialists (consisting of both
Board-certified physicians and other qualified specialists) who have
expressed a willingness to perform these types of examinations. OWCP
selects physicians from the pool on a strict rotational basis according
to medical specialty and geographic location, and periodically reviews
the pool for quality control purposes and to allow other qualified
physicians an opportunity to join the pool.
Three of these same five labor organizations and two of the same
four advocacy groups also suggested that claimants should be allowed to
have someone of their own choosing present during a referee
examination. As was the case with second opinion examinations, the
restriction against anyone accompanying a claimant during a referee
examination was intended to minimize the possibility of disruptions,
but given the nature of the claimant population and the likelihood of
this occurring, OWCP is persuaded that the restriction is not necessary
for all referee examination referrals. However, consistent with its
decision regarding the limitation in Sec. 30.410, OWCP will retain the
restriction for use if the person accompanying the claimant disrupts
the examination and OWCP has to refer the claimant to a different
physician for the requested referee examination.
Section 30.412
One advocacy group suggested that OWCP consider paying for a family
member to accompany all employees on any directed medical examinations
that would necessitate either an overnight stay away from home or air
transportation. OWCP does not consider a blanket rule of this sort to
be justifiable, since it is clear that while many employees may be so
infirm as to require somebody to accompany them to such an examination,
it is equally clear that others will not. Therefore, OWCP prefers to
maintain the discretion in this section to determine whether such
expenses are ``reasonable and necessary,'' and the suggestion has not
been adopted.
Sections 30.500, 30.501 and 30.502
A total of 143 comments addressed the description of how survivors
are defined and paid in Sec. Sec. 30.500, 30.501 and 30.502: Three
from congressional representatives; eight from labor organizations; 10
from advocacy groups; four from physicians; four from attorneys; one
from a lay representative; and 112 from other individuals. However,
these comments were rendered moot following the enactment of section
3151(a)(4) of Public Law 107-107, which amended the survivor provisions
in sections 7384s(e) and 7384u(e) of the EEOICPA. To conform the final
regulations to the amended provisions, Sec. Sec. 30.500 through 30.502
have been completely rewritten and the prior definition for ``widow or
widower'' from Sec. 30.5(gg) of the interim final regulations has been
modified and consolidated with the other statutory definitions in Sec.
30.500. As a result of the latter change, former Sec. 30.5(hh) has
been renumbered as Sec. 30.5(gg) in the final regulations.
Section 30.505(c)
Two advocacy groups, one attorney and one commenter disagreed with
the provision in Sec. 30.505(c) (renumbered as Sec. 30.505(b) in
accordance with the revision noted above) for an offset of EEOICPA
benefits against any amounts received for an occupational illness in a
final judgment or settlement in litigation. This same commenter, and
five other commenters, also questioned the justification for any offset
of EEOICPA benefits. Section 7385 of the Act requires an offset of
EEOICPA benefits if certain other payments have been received, and
provides the necessary statutory justification for the offset process.
However, section 7385 does not describe how this process should occur,
and the above comments indicate the need for a more detailed
description of how, and to what extent, OWCP will offset EEOICPA
benefits. Therefore, Sec. 30.505(b) now contains a more thorough
definition of the type of payment that will necessitate an offset, and
how OWCP will determine the value of any such payment. It also provides
for deductions from the amount to be offset (for reasonable attorney's
fees and itemized costs of suit) in order to arrive at the amount of
the required offset of EEOICPA benefits. The regulation also provides
that an offset will result in the reduction of an unpaid lump-sum
payment first. Finally, this paragraph indicates that OWCP will not
offset any EEOICPA benefits if a claimant has already had his or her
benefits under section 5 of the RECA reduced to reflect a payment that
would otherwise require an offset of EEOICPA benefits.
Section 30.505(d) and (f)
One lay representative inquired whether OWCP would pay survivor
benefits in stages, or if it would wait until it was ready to pay all
survivors of a single deceased covered employee at the same time.
Section 30.505(d) (renumbered as Sec. 30.505(c) in accordance with the
revision noted above) provides that ``No payment shall be made until
OWCP has made a determination concerning the survivors related to a
respective claim for benefits.'' This restriction is necessary to
conserve administrative resources and has been retained; however, there
is no requirement that OWCP wait to actually pay all the survivors of a
deceased covered employee at the same time. Accordingly, a survivor who
signs and returns the acceptance form quickly may be paid his or her
share of the compensation payment before another survivor who waits the
full 60 days before signing and returning the form. In cases with
multiple claimants, OWCP will determine the share of the lump-sum
amount, if any, to which each survivor is entitled.
The same lay representative also questioned the prohibition in
Sec. 30.505(f) (renumbered as Sec. 30.506(c) in accordance with the
revision noted above) against distributing rejected shares of
compensation payments to other eligible survivors. Sections
7384s(e)(1)(B) and 7384u(e)(1)(B) both require the payment of equal
shares of a single compensation payment to ``all children of the
covered employee who are living at the time of payment,'' not all
children of the covered employee who are living at the time of payment
and who do not reject their shares. Therefore, the prohibition against
distributing rejected shares of compensation is established by the
terms of the Act itself, and no change was made to this section.
Section 30.506
Two physicians, one advocacy group, one labor organization and one
commenter had questions regarding the provision of medical benefits to
covered employees whose sole occupational illness is beryllium
sensitivity. Section 30.506 (renumbered as Sec. 30.507 in accordance
with the revision noted above) stated that these employees were not
entitled to any medical benefits other than beryllium sensitivity
monitoring. However, because section 7384s(a)(2) of the Act only
replaces the lump-sum payment provided for under section 7384s(a)(1)
with beryllium sensitivity monitoring and is silent with respect to
entitlement to medical
[[Page 78881]]
benefits, covered employees whose sole occupational illness is
beryllium sensitivity should be provided medical benefits for that
condition. Therefore, Sec. 30.507 has been revised to be consistent
with this interpretation and now states that covered employees whose
sole occupational illness is beryllium sensitivity are entitled to the
same medical benefits provided to other covered employees. The
estimated marginal cost of providing these benefits (which would
usually be for low-cost prescription steroid medications) will be
negligible from a budgetary standpoint.
Section 30.601
One lay representative commented on this section by asking who
would represent mentally incompetent claimants, and if she could
represent claimants in the EEOICPA claim process. Serving as a legal
representative of a mentally incompetent person is a matter of state
law and is thus outside the scope of these regulations. Section 30.601,
which addresses the question of who may serve as a representative in
the claims process, does not bar lay representatives from providing
representation to EEOICPA claimants. On a related issue, three advocacy
groups and three individuals submitted comments on the statutory
attorney fees cap for representation of EEOICPA claimants. However,
following publication of the interim final rule, Congress amended
section 7385g of the Act in section 3151(a)(6) of Public Law 107-107.
Therefore, new Sec. 30.603 has been added to reflect the current
statutory limits on attorney fees in amended section 7385g.
Section 30.609
One advocacy group disagreed with the requirement that claimants
report (for possible offset of EEOICPA benefits) awards they receive
due to medical malpractice in treating a covered occupational disease.
However, since these awards are clearly payments ``made pursuant to a
final award or settlement on a claim'' that has its genesis in an
occupational illness covered by the Act, no change was made to this
requirement so OWCP will be able to fulfill its offset responsibilities
under section 7385 of the EEOICPA.
Sections 30.615 and 30.616
Two advocacy groups, two attorneys and three other commenters
suggested possible changes to Sec. Sec. 30.615 and 30.616 (rewritten
as Sec. Sec. 30.615 through 30.619 as noted above). These suggestions
were rendered moot by section 3151(a)(5) of Public Law 107-107, which
amended the election of remedy provisions in section 7385d of the
EEOICPA. To conform the final regulations to these amendments, prior
Sec. Sec. 30.615 and 30.616 have been rewritten as Sec. Sec. 30.615
through 30.619, and prior Sec. 30.617 has been renumbered as Sec.
30.620 to accommodate these changes.
Section 30.701(c)
One physician and one advocacy group noted that there is no
diagnostic code for beryllium sensitivity in the ``International
Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-
CM), and that medical providers are required to provide such a code
whenever they submit bills to OWCP for payment. To address this, OWCP
has designated the V81.4 classification ``Other and unspecified
respiratory conditions'' as the appropriate ICD-9-CM classification for
beryllium sensitivity. Use of this code will both allow OWCP to track
accepted beryllium sensitivity cases, and to pay medical providers for
pre-approved diagnostic tests to monitor the employee for signs of
chronic beryllium disease.
Sections 30.705 through 30.710
One advocacy group questioned OWCP's decision to base the medical
fee schedule for professional medical services and inpatient medical
services on cost data supplied by the Centers for Medicare and Medicaid
Services (CMS) in light of the increased cost for those services in
remote geographical areas. However, Sec. 30.707(b) provides that the
``relative value units'' assigned by CMS to professional medical
services will be multiplied by the Geographic Practice Cost Indices for
Metropolitan Statistical Areas as devised for CMS, and this adjustment
should be sufficient to accommodate increased costs for these services
in remote areas. Further, Sec. 30.710 indicates that the fee schedule
for inpatient medical services will be based on hospital-specific cost
factors that are part of the CMS Prospective Payment System OWCP will
use to pay for hospital discharges. In either instance, the fee
schedules may be adjusted if OWCP deems it necessary or appropriate.
Therefore, the suggestion to use a different set of cost data was not
adopted.
II. Miscellaneous Comments
Several of the 216 timely comments the Department received raised
issues that either were not addressed in the interim final regulations
or involved extraneous matters. The Department's analysis of these
miscellaneous comments follows:
The Rulemaking Process
OWCP received comments from two labor organizations, four advocacy
groups and one individual commenter on the rulemaking process. The
various comments requested that public hearings be held on the
regulations and that a formal advisory committee be appointed, and
suggested that the interim final regulations be effective for a short
time period, to be followed by a notice and comment period prior to
publication of the final rule. Because of the time constraints set
forth in E.O. 13179, which required publication of regulations by May
31, 2001 and the establishment of a functioning program by July 31,
2001, OWCP chose to publish an interim final rule without first
publishing a notice of proposed rulemaking. However, because OWCP both
understands and appreciates the importance of public input in the
rulemaking process, it provided an extensive comment period of 120 days
to receive input from the public on the regulations. Also, OWCP staff
members participated in numerous public meetings across the United
States to publicize and explain the Act and the regulations. All
comments received during the comment period have been thoroughly
reviewed and taken into consideration for purposes of the rulemaking
process and publication of this final rule.
Unlike the requirements in 42 U.S.C. 7384n(c)(2) and (d)(2) that
the regulations promulgated by HHS pursuant to section 7384n(b) and
(d)(1) be reviewed by the Advisory Board on Radiation and Worker Health
that was established as directed by section 7384o, there is no
requirement in section 7384d that the regulations promulgated by DOL
for the administration of the program be reviewed by any advisory
board. As noted above, a lengthy period for public comments was
provided in connection with the Interim Final Regulations, and regular
and frequent communications occur with HHS and DOE. DOL also attends
and participates in the public meetings of the Advisory Board on
Radiation and Worker Health. Under these circumstances, DOL does not
see the utility in adding an advisory committee to this rulemaking
process.
Coordination of Benefits
Three individuals submitted comments suggesting that there be no
coordination of benefits for claimants with beryllium illnesses, and
three other individuals submitted general questions regarding
coordination of benefits with State workers' compensation program
[[Page 78882]]
benefits. These comments involve the operation of section 7385h of the
Act, which deals with the interplay between the Act, State law and
private insurance contracts; however, OWCP did not address this issue
in the interim final rule, nor does it do so in this final rule.
Designating Facilities
One attorney (in two separate comments), the City Council of the
City of Niagara Falls, and eight individuals requested that the time
frames indicated by DOE for certain facilities be expanded and/or that
specific new facilities be included on the list of covered facilities
maintained by DOE. These recommendations have been forwarded to DOE,
which is actively soliciting information from the public as it
continues its research efforts regarding facility time frames and
additions or deletions to the covered facilities list.
Benefit Levels
One lay representative and eight other commenters made suggestions
about the level of benefits to be provided to successful claimants.
However, since the benefit levels are set by the terms of the Act, the
regulations cannot adopt a different level of benefits unless the Act
itself is amended. Accordingly, the suggested changes were not adopted.
Coverage
One congressional representative, two physicians, the Department of
Defense, five advocacy groups, and 31 commenters made suggestions about
which workers should be covered by the Act. However, the Act mandates
the categories of workers covered and the regulations cannot be changed
to either expand or restrict the categories of covered workers unless
the Act is amended. Therefore, the suggested changes have not been
made.
Covered Illnesses
Two advocacy groups, a physician, an attorney and 19 individuals
suggested that the occupational illnesses covered by the Department's
program be expanded to include additional illnesses that may have
resulted from the exposure of employees to harmful substances while in
the performance of duty at covered facilities under the Act. However,
OWCP has no authority to implement any such changes in the absence of
legislative changes to the Act. Furthermore, Part D of the Act already
provides the opportunity for claimants to obtain assistance from DOE in
filing for benefits under appropriate State workers compensation
programs in connection with the exposure of DOE contractor employees to
toxic substances at DOE facilities.
III. Publication in Final
The Department of Labor has determined, pursuant to 5 U.S.C.
553(b)(B), that good cause exists for waiving public comment on this
final rule with respect to the following changes: (1) Those needed to
conform the regulations to the sections of the EEOICPA that were
amended by Public Laws 107-20 and 107-107; (2) those needed to conform
the regulations to the probability of causation guidelines issued by
HHS; (3) corrections of typographical errors; and (4) minor wording
changes and clarifications that do not affect the substance of the
regulations. For these changes, publication of a proposed rule and
solicitation of comments would be neither necessary nor fruitful.
IV. Statutory Authority
Section 7384d of the EEOICPA provides the general statutory
authority, which E.O. 13179 allocates to the Secretary, to prescribe
rules and regulations necessary for the administration and enforcement
of the Act. Sections 7384t and 7384u of the EEOICPA provide specific
authority regarding medical treatment and care, including determining
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.
V. Paperwork Reduction Act
This final rule contains information collection requirements
subject to the Paperwork Reduction Act of 1995 (PRA). The information
collection requirements set out in Sec. Sec. 30.401, 30.404, 30.420,
30.421, 30.700, 30.701 and 30.702(a) of this rule were submitted to and
approved by OMB under the PRA, and the currently approved collections
in OMB Control Nos. 1215-0054 (expires June 30, 2004), 1215-0055
(expires November 30, 2003), 1215-0137 (expires February 28, 2005),
1215-0176 (expires December 31, 2003), and 1215-0194 (expires January
31, 2004) were revised to include the added EEOICPA respondents. No
public comments were received regarding this group of information
collection requirements, and they were not affected by any of the
substantive changes that have been made in this final rule.
The information collection requirements in Sec. Sec. 30.100,
30.101, 30.102, 30.111, 30.113, 30.114, 30.206, 30.207, 30.212, 30.214,
30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 30.505, 30.620
and 30.702(b) of this rule were also submitted to and approved by OMB
under the PRA and were assigned OMB Control No. 1215-0197 (expires July
31, 2004). No public comments were received regarding this second group
of information collection requirements, and they were not affected by
any of the substantive changes that have been made in this final rule.
However, this final rule revises the currently approved collection in
OMB Control No. 1215-0197 by adding three new information collection
requirements, and this revision of a currently approved collection will
be submitted to OMB for review under the PRA upon publication of the
rule. No person is required to respond to a collection of information
request unless the collection of information displays a valid OMB
control number. The new information collection requirements are in
Sec. Sec. 30.112 and 30.213, and they relate to information required
to be submitted by claimants as part of the EEOICPA claims adjudication
process. One of the new collections will be implemented without any
specific form (see section A below). The Department is proposing to
create two new forms to implement the other new collections (see
sections B and C below).
A. Supplemental Employment Evidence (Sec. 30.112)
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
the employment history provided on Form EE-3 or EE-4 cannot be
verified, OWCP may ask the claimant to provide supplemental employment
evidence in support of the alleged history. After it reviews the
evidence of record on this point, OWCP will determine whether a period
of covered employment has been established by a preponderance of the
evidence.
Need: Documentation of a 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 3,870
[[Page 78883]]
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
1,935 hours.
B. Lung Cancer Information: Form EE/EN-8 (Sec. 30.213)
Summary: Guidelines issued by HHS require OWCP to ask claimants for
information regarding the employee's smoking history before OWCP can
determine the probability of causation for lung cancer (the disease
classified as ``lung cancer'' includes primary cancer of both the
trachea and bronchus). This information is not requested if the
employee is a member of the Special Exposure Cohort. If the claim is
for lung cancer (or a secondary cancer for which lung cancer is a
likely primary cancer), OWCP will send the claimant a Form EE/EN-8.
Form EE/EN-8 informs the claimant that to determine the probability of
causation of the claimed cancer, OWCP needs to know the employee's
smoking history, and requests that the claimant submit the necessary
information. All respondents will be required to certify that the
information provided on Form EE/EN-8 is accurate and true.
Need: OWCP cannot determine the probability of causation for lung
cancer without this information.
Respondents and proposed frequency of response: It is estimated
that 3,021 respondents annually will file one Form EE/EN-8.
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/EN-8 is estimated to take an average
of 5 minutes per response for a total annual burden of 252 hours.
C. Skin Cancer Information: Form EE/EN-9 (Sec. 30.213)
Summary: Guidelines issued by HHS require OWCP to ask claimants for
information regarding the employee's race/ethnicity before OWCP can
determine the probability of causation for skin cancer. If the claim
involves skin cancer (or a secondary cancer for which skin cancer is a
likely primary cancer), OWCP will send the claimant a Form EE/EN-9.
Form EE/EN-9 informs the claimant that in order to determine the
probability of causation of the claimed cancer, OWCP needs to know the
employee's race/ethnicity, and requests that the claimant submit the
necessary information. All respondents will be required to certify that
the information provided on Form EE/EN-9 is accurate and true.
Need: OWCP cannot determine the probability of causation for skin
cancer without this information.
Respondents and proposed frequency of response: It is estimated
that 1,057 respondents annually will file one Form EE/EN-9.
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/EN-9 is estimated to take an average
of 5 minutes per response for a total annual burden of 88 hours.
D. Total Annual Burden and Request for Comments
Total public burden: The new information collection requirements
being added to OMB Control No. 1215-0197 have a total public burden
hour estimate of 2,275. Using the current National average hourly
earnings of $14.00, the total annual public cost for these new
information collection requirements is estimated to be $31,850.00.
There are no recordkeeping or collection costs associated with the new
information collection requirements described above. The only operation
and maintenance cost will be for postage and mailing. An estimated
annual total of 7,948 mailed responses to these new information
collection requirements at $0.37 (postage) + $0.03 (envelope) per
response would be $3,179.20.
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, Washington, DC 20503 no later than January 27, 2003.
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 in section 3(f)(1) of that Order. The payment
of the benefits provided for by the EEOICPA, through the program
administered pursuant to this regulatory action, will have an annual
effect on the economy of $100 million or more. However, the final rule
will 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
required by section 3(f)(1) of E.O. 12866. The proposed 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 the EEOICPA. The
Department has also concluded that this final 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 upon the factors and assumptions set forth below, the
Department's estimate of the aggregate cost of benefits and
administrative expenses of this final regulatory action implementing
the EEOICPA is, in millions of dollars (estimates for FY2004, FY2005
and FY2006 are preliminary and will be reviewed during the budget
formulation process):
[[Page 78884]]
----------------------------------------------------------------------------------------------------------------
FY2002 FY2003 FY2004 FY2005 FY2006
----------------------------------------------------------------------------------------------------------------
Admin.................................................... $136 $100 $55 $50 $33
Benefits................................................. 769 758 578 353 250
----------------------------------------------------------------------------------------------------------------
The Department's estimate of the benefits to be paid pursuant to
the EEOICPA and of its administrative costs of providing those benefits
is based on data collected from other Federal agencies, assumptions
regarding the incidence of cancer, beryllium disease and silicosis in
the covered population, life expectancy tables, and its experience in
estimating administrative and medical costs of workers' compensation
programs. Specifically, benefit estimates for cancer claims are based
on figures provided by DOE concerning the number of DOE/contractor
employees, known cancer incidence and survival rates in the general
population obtained from the National Cancer Institute. Based on the
number of claims likely to be accepted, the cost of lump-sum payments
to these claimants is easily determined. These benefit estimates
further reflect contemplated medical costs of $1,500 per year for 90%
of the covered claimants, while the remaining 10% will incur $125,000
in medical costs for the year because they are undergoing intensive in-
hospital medical treatment.
Benefits estimates for beryllium exposure are based on known
incidence rates, known numbers of claimants with beryllium disease,
exposed population figures (all of which were obtained from DOE), 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 more
severe chronic beryllium disease. Benefit estimates for silicosis are
based on figures obtained from DOE concerning the number of exposed
employees and the expected incidence of silicosis, and medical costs of
$4,000 per year. Benefit estimates for the claims based on the receipt
of an award pursuant to section 5 of the RECA are based on figures for
the number of claims provided by DOJ, and $4,000 per year in medical
costs.
Because the statute provides benefits for covered workers and their
survivors who were exposed to radiation, beryllium and silica during a
period of almost 60 years, an assumption was made that DOL would
receive thousands of claims in the initial few years after the
effective date of the statute, and that the number of claims would
decrease substantially after the first few years. Administrative cost
estimates were developed based upon DOL's experience in administering
other workers' compensation programs, using calculations of the number
of incoming claims and forecasting the necessary full-time equivalents
and other resources necessary to efficiently administer the program.
No more extensive economic impact analysis is necessary because
this regulatory action only addresses the transfer of funds from the
Federal government to individuals who qualify under the EEOICPA and to
providers of medical services in that program. As noted above, 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 regulation
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 because they
do not involve either the number of eligible recipients or the level of
benefits to which they are entitled.
OMB has reviewed this final 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 final rule prior to its
effective date. The report will state that the Department has concluded
that this final 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 final 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 final 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 applying cost control
measures to payments for medical expenses are the only ones that may
have a monetary effect on small businesses. That effect will not be
significant for a substantial number of those businesses, however, for
no single business will bill a significant amount to OWCP for EEOICPA-
related services, and the effect on those bills which are submitted,
while a worthwhile savings for the Government in the aggregate, will
not be significant for individual businesses affected.
The cost containment 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 first two of these provisions
essentially adopt payment systems that are commonplace in the industry.
Their adoption by OWCP for use in connection with its administration of
the EEOICPA program will therefore result in efficiencies for both the
Government and providers. The Government will benefit because OWCP did
not have to develop new cost containment measures, 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 providers 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 will not
be readily distinguishable from the Medicare process. Similarly,
pharmacies are used to billing through clearing houses and having their
charges subject to limits by private insurers. By adopting the uniform
billing statement and a familiar cost control methodology, OWCP has
[[Page 78885]]
kept close to the billing environment with which pharmacies are already
familiar. The methods chosen, therefore, represent systems that are
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 standards, since most hospitals providing
services for EEOICPA-covered conditions will have annual receipts that
exceed the set maximum.
The implementation of these cost containment 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 containment 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 a covered
illness and require medical treatment on or after July 31, 2001 (out of
the projected total of 19,479 claims OWCP estimates it will accept over
the first five years of the program, only approximately 5,727 of these
will involve payment for medical treatment), 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 ultimate costs of the program are
eventually charged through appropriations.
The Assistant Secretary for Employment Standards has certified to
the Chief Counsel for Advocacy of the Small Business Administration
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 final rule has been drafted and reviewed in accordance with
E.O. 12988 and will not unduly burden the Federal court system. While
the EEOICPA does not provide any specific procedures claimants must
follow in order to seek review of decisions on their claims,
substantial numbers of claimants will likely seek review of adverse
decisions in the United States district courts pursuant to the
Administrative Procedure Act. This rule should minimize the burden
placed upon the courts by litigation seeking to challenge decisions
under EEOICPA by providing claimants an opportunity to seek
administrative review of adverse decisions and by providing a clear
legal standard for affected conduct. It has been reviewed carefully to
eliminate drafting errors and ambiguities.
XI. 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. The
Department has determined that the final rule will have no effect on
children.
XII. Executive Order 13132 (Federalism)
The Department has reviewed this final rule in accordance with E.O.
13132 and has determined that it does not have any ``federalism
implications.'' The final 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.''
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 final rule on energy supply, distribution or use, and
has determined that this rule is not likely to have a significant
adverse effect on them.
XIV. Submission to Congress and the General Accounting Office
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the Department will submit to each House of the
Congress and to the Comptroller General a report regarding the issuance
of this final rule prior to the effective date set forth at the outset
of this notice. The report will note that this rule constitutes a
``major rule'' as defined by 5 U.S.C. 804(2).
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
Organization and functions (Government agencies).
20 CFR Part 30
Administrative practice and procedure, Cancer, 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; 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.
Sec. 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
[[Page 78886]]
the Assistant Secretary, administers the programs assigned to OWCP by
the Assistant Secretary.
Sec. 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.).
Sec. 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.
Sec. 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.
Sec. 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 Sec. 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.
Sec. 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 benefits still entitled to those benefits?
Subpart B--Filing Claims; Evidence and Burden of Proof; Special
Procedures for Certain Cancer Claims
Claims for Occupational Illness--Employee or Survivor's Actions
30.100 In general, how does an employee file for benefits?
30.101 In general, how is a survivor's claim filed?
30.102 How does a claimant make sure that OWCP has the evidence
necessary to process the claim?
Claims for Occupational Illness--Actions of DOE
30.105 What must DOE do after an employee files a claim for an
occupational illness?
30.106 What should DOE do when an employee with a claim for an
occupational illness dies?
Evidence and Burden of Proof
30.110 Who is entitled to compensation under the Act?
[[Page 78887]]
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 Cancer Claims
30.115 For those claims that do not seek benefits pursuant to the
Special Exposure Cohort provisions, what will OWCP do once it
determines that a covered employee (or a survivor of such an
employee) has established that he or she contracted cancer under
Sec. 30.211?
Subpart C--Eligibility Criteria
General Provisions
30.200 What is the scope of this subpart?
Eligibility Criteria for Claims Relating to Covered Beryllium Illness
30.205 What are the criteria for eligibility for benefits relating
to covered beryllium illness?
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 covered beryllium
disease?
Eligibility Criteria for Claims Relating to Cancer
30.210 What are the criteria for eligibility for benefits relating
to 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 or an atomic
weapons employer facility?
30.213 How does a claimant establish that the cancer was at least as
likely as not related to the employment at the DOE facility or the
atomic weapons employer 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 been
diagnosed with cancer or has sustained a consequential injury,
illness or disease?
Eligibility Criteria for Claims Relating to Chronic Silicosis
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 or disease?
Eligibility Criteria for Certain Uranium Employees
30.225 What are the criteria for eligibility for benefits for
certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee
has sustained a consequential injury, illness or disease?
Subpart D--Adjudicatory Process
30.300 What process will OWCP use to decide claims and to provide
for administrative review of those decisions?
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
remand a claim to the district office?
30.318 Can the FAB consider an objection to a determination by HHS
with respect to an employee's dose reconstruction?
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 care?
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 are medical bills submitted?
30.421 What are the time frames for submitting bills?
30.422 If OWCP reimburses an employee only partially 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
the EEOICPA?
30.501 What order of precedence will OWCP use to determine which
survivors are entitled to receive compensation under the EEOICPA?
30.502 When is entitlement for survivors determined for purposes of
the 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 employees who
only establish beryllium sensitivity?
30.508 What is beryllium sensitivity monitoring?
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 the EEOICPA?
30.512 How does OWCP determine that a beneficiary owes a debt as the
result of the creation of an overpayment?
30.513 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 United States have upon payment of
compensation under the EEOICPA?
30.606 Under what circumstances must a recovery of money or other
property in
[[Page 78888]]
connection with an illness for which benefits are payable under the
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 United States calculate the amount to which it
is subrogated?
30.609 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an illness covered by
the EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to an employee or 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 EEOICPA?
30.616 What happens if this type of tort suit was filed prior to
October 30, 2000?
30.617 What happens if this type of tort suit was filed during the
period from October 30, 2000 through December 28, 2001?
30.618 What happens if this type of tort suit is filed after
December 28, 2001?
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 the EEOICPA?
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 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?
Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C.
7384d, 7384t and 7384u; 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
Sec. 30.0 What are the provisions of the EEOICPA, in general?
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 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. It also provides for the payment of
compensation to certain persons already 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
employees. The regulations in this part describe the rules for filing,
processing, and paying claims for benefits under the EEOICPA.
(a) The EEOICPA provides for the payment of either monetary
compensation for the disability of a covered employee due to an
occupational illness or for monitoring for beryllium sensitivity, as
well as for medical and related benefits for such illness.
(b) All types of benefits and conditions of eligibility listed in
this section are subject to the provisions of the EEOICPA and of this
part.
Sec. 30.1 What rules govern the administration of the EEOICPA and
this chapter?
In accordance with the 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.
Sec. 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 various tasks associated
with the 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 claimants file their claims with OWCP, and OWCP
is responsible for granting or denying compensation under the Act (see
Sec. Sec. 30.100, 30.101, and 30.505 through 30.513). 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
covered illnesses. In addition, OWCP provides an administrative review
process for claimants who disagree with its recommended and final
adverse
[[Page 78889]]
decisions (see Sec. Sec. 30.300 through 30.320).
(b) However, HHS has exclusive control of a portion of the claims
process involving certain cancer claims, and is therefore responsible
for providing reconstructed doses for these claims (see Sec. 30.115).
HHS has also promulgated regulations at 42 CFR part 81 establishing the
guidelines that OWCP must follow to assess the likelihood that an
individual with cancer sustained the cancer in the performance of duty
(see Sec. 30.210). DOE and DOJ are responsible for, among other tasks,
notifying potential claimants and submitting evidence that OWCP deems
necessary for its adjudication of claims under the EEOICPA (see
Sec. Sec. 30.105, 30.106, and 30.111).
Sec. 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 the EEOICPA, as well as personnel in the various
federal agencies and DOL who process claims filed under the EEOICPA or
who perform administrative functions with respect to the EEOICPA. The
various subparts of this part contain the following:
(a) Subpart A: the general statutory and administrative framework
for processing claims under the 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 under the EEOICPA, including convictions for fraud.
(b) Subpart B: the rules for filing claims for benefits under the
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 conditions covered by
the EEOICPA.
(d) Subpart D: the rules governing the adjudication process leading
from recommended to final decisions made on claims filed under the
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, and medical reports and
records in general. It also addresses the kinds of treatment that may
be authorized and how medical bills are paid.
(f) Subpart F: the rules relating to the payment of monetary
compensation. It includes the provisions for identifying and processing
overpayments of compensation.
(g) Subpart G: the rules concerning legal representation of
claimants before OWCP, subrogation of the United States, and the effect
of tort suits against beryllium vendors and atomic weapons employers.
(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.
Definitions
Sec. 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 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.
(d) Atomic weapons employer means any entity, other than the United
States, that:
(1) Processed or produced, for use by the United States, material
that emitted radiation and was used in the production of an atomic
weapon, excluding uranium mining and milling; and
(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 United
States or the United States Department of Justice (DOJ).
(g) Benefit or Compensation means the money the Department pays to
or on behalf of a covered employee from the Energy Employees
Occupational Illness Compensation Fund. However, the term
``compensation'' used in section 7385f(b) of the EEOICPA (with respect
to entitlement to only one payment of compensation) means only the
payments specified in section 7384s(a)(1) ($150,000 lump sum payment)
and in section 7384u(a) ($50,000 payment to beneficiaries under section
5 of the RECA). 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 of an individual's entitlement
to benefits under the 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.
[[Page 78890]]
(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 Sec. 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 employee means a covered beryllium employee (see Sec.
30.205), a covered employee with cancer (see Sec. 30.210), a covered
employee with chronic silicosis (see Sec. 30.220), or a covered
uranium employee (see paragraph (q) of this section).
(q) Covered uranium employee means an individual who has been
determined by DOJ to be entitled to an award under section 5 of the
RECA, regardless of whether the individual was the employee or the
deceased employee's survivor.
(r) Current or former employee as defined in 5 U.S.C. 8101(1) as
used in Sec. 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 United States, including an officer or employee of an
instrumentality wholly owned by the United States;
(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.
(s) Department means the United States Department of Labor (DOL).
(t) Department of Energy or DOE includes the predecessor agencies
of the DOE, including the Manhattan Engineering District.
(u) 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.
(v) Department of Energy facility means any building, structure, or
premise, including the grounds upon which such building, structure, or
premise is located:
(1) 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
(2) With regard to which the DOE has or had:
(i) A proprietary interest; or
(ii) Entered into a contract with an entity to provide management
and operation, management and integration, environmental remediation
services, construction, or maintenance services.
(w) Disability means, for purposes of determining entitlement to
payment 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.
(x) Eligible surviving beneficiary means any individual who is
entitled under sections 7384s(e) or 7384u(e) of the Act to receive a
payment on behalf of a deceased covered employee.
(y) Employee means either a current or former employee.
(z) Occupational illness means a covered beryllium illness, cancer
sustained in the performance of duty as defined in Sec. 30.210(b),
specified cancer, or chronic silicosis.
(aa) OWCP means the Office of Workers' Compensation Programs,
United States Department of Labor.
(bb) 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.
(cc) 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.
(dd) Specified cancer (as defined in section 4(b)(2) of the RECA
and in the Act) 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) Colon;
(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.
(ee) Survivor means:
(1) Subject to paragraph (ee)(2) of this section, a surviving
spouse, child, parent, grandchild and grandparent of a deceased covered
employee.
(2) Those individuals listed in paragraph (ee)(1) 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.
(ff) 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 employee was exposed to such
substance in the
[[Page 78891]]
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, the
last date on which a covered 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.
(gg) Workday means a single workshift whether or not it occurred on
more than one calendar day.
Information in Program Records
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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 lump-sum payments of EEOICPA benefits to
collect overdue alimony and child support. A request to garnish a lump-
sum 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.
Sec. 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 the EEOICPA. The Department's
regulations implementing the PFCRA are found at 29 CFR part 22.
Sec. 30.17 Is a beneficiary who defrauds the government in connection
with a claim for 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's entitlement to any further benefits will terminate
effective the date either the guilty plea is accepted or a verdict of
guilty is returned after trial, for any occupational disease 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
Claims for Occupational Illness--Employee or Survivor's Actions
Sec. 30.100 In general, how does an employee file for benefits?
(a) To claim benefits under the EEOICPA, an employee must file a
claim in writing on or after July 31, 2001. Form EE-1 should be used
for this purpose, but any written communication that requests benefits
under the 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, from
DOE, or on the Internet at www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.
The employee must file his or her claim with OWCP, or another
person may do so on the employee's behalf.
(b) The employee may withdraw his or her claim by so requesting in
writing to OWCP at any time before OWCP determines eligibility for
benefits.
(c) 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 or DOE, whichever is the
earliest determinable date, but in no event earlier than July 31, 2001.
(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, the employee is
responsible for submitting, or arranging for the submission of, medical
evidence to OWCP that establishes that he or she sustained an
occupational illness.
Sec. 30.101 In general, how is a survivor's claim filed?
(a) A survivor of an employee who sustained an occupational illness
may file a claim for compensation in writing on or after July 31, 2001.
Form EE-2 should be used for this purpose, but any written
communication that requests 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
[[Page 78892]]
obtained from OWCP, from DOE, or on the Internet at www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.
The claiming survivor must file
his or her claim with OWCP, or another person may do so on the
survivor's behalf. Although only one survivor need file a claim under
this section to initiate the development process, OWCP will distribute
any monetary benefits paid among all eligible surviving beneficiaries
pursuant to the terms of Sec. 30.501.
(b) A survivor may withdraw his or her claim by so requesting in
writing to OWCP at any time before OWCP determines eligibility for
benefits.
(c) A survivor must be alive to receive any payment; there is no
vested right to such payment.
(d) 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 or DOE,
whichever is the earliest determinable date, but in no event earlier
than July 31, 2001.
(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, 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.
Sec. 30.102 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. DOE is expected to maintain an adequate
supply of the basic forms needed for filing claims under the EEOICPA.
------------------------------------------------------------------------
Form No. Title
------------------------------------------------------------------------
(1) EE-1.............................. Claim for Benefits Under Energy
Employees Occupational Illness
Compensation Program Act.
(2) EE-2.............................. Claim for Survivor Benefits
Under Energy Employees
Occupational Illness
Compensation Program Act.
(3) EE-3.............................. Employment History for Claim
Under Energy Employees
Occupational Illness
Compensation Program Act.
(4) EE-4.............................. Employment History Affidavit for
Claim Under the Energy
Employees Occupational Illness
Compensation Program Act.
(5) EE-5.............................. Department of Energy's Response
to Employment History for Claim
Under the Energy Employees
Occupational Illness
Compensation Program Act.
(6) EE-7.............................. Medical Requirements Under the
Energy Employees Occupational
Illness Compensation Program
Act (EEOICPA).
------------------------------------------------------------------------
(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,
Washington, D.C. 20210. They may also be obtained from OWCP district
offices, from DOE, and on the Internet at www.dol.gov/esa/regs/
compliance/owcp/eeoicp/main.htm.
Claims for Occupational Illness--Actions of DOE
Sec. 30.105 What must DOE do after an employee files a claim for an
occupational illness?
(a) DOE shall complete Form EE-5 as soon as possible and transmit
the completed form to OWCP. On this form, DOE shall certify that it
concurs with the employment information provided by the employee, or
that it disagrees with such information, 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) Upon request of a claimant, DOE shall also assist such claimant
in completing Form EE-4 and transmit the completed form to OWCP.
(c) DOE should not wait for the employee to submit the necessary
supporting medical evidence before it forwards any Form EE-1 (or other
document containing an employee's claim) it has received to OWCP.
Sec. 30.106 What should DOE do when an employee with a claim for an
occupational illness dies?
(a) When possible, DOE shall furnish a Form EE-2 to all survivors
likely to be entitled to compensation after the death of an employee.
DOE should also supply information about completing and filing the
form.
(b) DOE shall complete Form EE-5 as soon as possible and transmit
the completed form to OWCP. On this form, DOE shall certify that it
concurs with the employment information provided by the survivor, or
that it disagrees with such information, 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.
(c) Upon request of a survivor, DOE shall also assist such survivor
in completing Form EE-4 and transmit the completed form to OWCP.
(d) DOE should not wait for the claiming survivor to submit the
necessary supporting medical evidence before it forwards any Form EE-2
(or other document containing a survivor's claim) it has received to
OWCP.
Evidence and Burden of Proof
Sec. 30.110 Who is entitled to compensation under the Act?
(a) Compensation is payable to the following covered employees, or
their survivors:
(1) A ``covered beryllium employee'' (as described in Sec.
30.205(a)) who has been diagnosed with a covered beryllium illness (as
defined in Sec. 30.5(o)) and was exposed to beryllium in the
performance of duty (in accordance with Sec. 30.206).
(2) A ``covered employee with cancer'' (as described in Sec.
30.210).
(3) A ``covered employee with chronic silicosis'' (as described in
Sec. 30.220).
(4) A ``covered uranium employee'' (as defined in Sec. 30.5(q)).
(b) Any claim that does not meet all of the criteria for at least
one of these categories, as set forth in these regulations, must be
denied.
(c) 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.
Sec. 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 Sec. 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
[[Page 78893]]
to the exceptions expressly provided in the Act and these regulations,
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 employee, survivor, and/
or DOE of the deficiencies and provide 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 covered employee or his or her survivor shall
be notified and afforded the opportunity to submit additional written
medical documentation or records.
Sec. 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) 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.
Sec. 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.
Sec. 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 Sec. 30.207, is required to establish a beryllium
illness.
(2) For chronic silicosis, additional medical evidence, as set
forth in Sec. 30.222, is required to establish chronic silicosis.
(3) For consequential injuries or illnesses, the claimant must also
submit a physician's fully rationalized medical report showing the
causal relationship between the resulting illness or injury 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.
[[Page 78894]]
Special Procedures for Certain Cancer Claims
Sec. 30.115 For those claims that do not seek benefits pursuant to
the Special Exposure Cohort provisions, what will OWCP do once it
determines that a covered employee (or a survivor of such an employee)
has established that he or she contracted cancer under Sec. 30.211?
(a) Other than claims solely for a non-radiogenic cancer listed by
HHS at 42 CFR 81.30, OWCP will forward any such claimant's application
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 is suspended.
(1) This package will include OWCP's initial findings in regard to
the covered employee's diagnosis and date of diagnosis, as well as any
employment history compiled by OWCP (including information such as
dates and locations worked, and job titles). The package, however, does
not constitute a recommended or final decision by OWCP on the claim.
(2) HHS will then reconstruct the covered employee's radiation
dose, following 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 consider whether the claimant has met the eligibility criteria set
forth in subpart C of this part.
Subpart C--Eligibility Criteria
General Provisions
Sec. 30.200 What is the scope of this subpart?
The regulations in this subpart describe the criteria for
eligibility for benefits for claims relating to covered beryllium
illness under sections 7384l, 7384n, 7384s and 7384t of the Act; for
claims relating to employees with cancer under sections 7384l, 7384n,
7384q and 7384t of the Act; for claims relating to chronic silicosis
under sections 7384l, 7384r, 7384s and 7384t; and for claims relating
to covered uranium employees under sections 7384t and 7384u. This
subpart describes the type and extent of evidence that will be accepted
as evidence of the various criteria for eligibility for compensation
for each of these illnesses.
Eligibility Criteria for Claims Relating to Covered Beryllium Illness
Sec. 30.205 What are the criteria for eligibility for benefits
relating to covered beryllium illness?
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 by establishing:
(1) The employee is a ``current or former employee as defined in 5
U.S.C. 8101(1)'' (see Sec. 30.5(r) 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 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; and
(3) The 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 Sec. 30.5(v) 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 United States, a beryllium vendor, or a contractor or subcontractor
of the DOE. Under this paragraph, exposure to beryllium in the
performance of duty can be established whether or not the beryllium
that may have been present at such facility was produced or processed
for sale to, or use by, DOE.
(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.
Sec. 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 by any regularly conducted
business activity or entity that acted as a contractor or subcontractor
to the DOE.
[[Page 78895]]
Sec. 30.207 How does a claimant prove a diagnosis of a covered
beryllium disease?
(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 January 1, 1993, beryllium
sensitivity (as established in accordance with paragraph (b) of this
section), together with lung pathology consistent with chronic
beryllium disease, including the following:
(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 January 1, 1993, the presence of the
following:
(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 Cancer
Sec. 30.210 What are the criteria for eligibility for benefits
relating to cancer?
To establish eligibility for benefits for cancer, an employee or
his or her survivor must show that:
(a) The employee has been diagnosed with one of the forms of cancer
specified in Sec. 30.5(dd) of this part; and
(1) Is a member of the Special Exposure Cohort (as described in
Sec. 30.214(a) of this subpart) who, as a DOE employee or DOE
contractor employee, contracted the specified cancer after beginning
employment at a DOE facility; or
(2) Is a member of the Special Exposure Cohort (as described in
Sec. 30.214(a) of this subpart) who, as an atomic weapons employee,
contracted the specified cancer after beginning employment at an atomic
weapons employer facility (as defined in Sec. 30.5(e)); or
(b) The employee has been diagnosed with cancer; and
(1)(i) Is/was a DOE employee who contracted that cancer after
beginning employment at a DOE facility; or
(ii) Is/was a DOE contractor employee who contracted that cancer
after beginning employment at a DOE facility; or
(iii) Is/was an atomic weapons employee who contracted that cancer
after beginning employment at an atomic weapons employer facility; and
(2) The cancer was at least as likely as not related to the
employment at the DOE facility or atomic weapons employer facility; or
(c) The employee has been diagnosed with an illness or disease that
arose as a consequence of the accepted cancer.
Sec. 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
cancer with medical evidence that sets forth the diagnosis of cancer
and the date on which that diagnosis was made.
Sec. 30.212 How does a claimant establish that the employee
contracted cancer after beginning employment at a DOE facility or an
atomic weapons employer 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, 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) If the evidence shows that exposure occurred while the employee
was employed 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 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.
Sec. 30.213 How does a claimant establish that the cancer was at
least as likely as not related to the employment at the DOE facility or
the atomic weapons employer facility?
HHS, with the advice of the Advisory Board on Radiation and Worker
Health, has issued guidelines for making the determination whether
cancer was at least as likely as not related to the employment at the
DOE facility or the atomic weapons employer facility at 42 CFR part 81.
Claimants should consult those guidelines for information regarding the
type of evidence that will be considered by OWCP, in addition to the
employee's radiation dose reconstruction that will be provided by HHS,
in making this determination.
Sec. 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
[[Page 78896]]
Sec. 30.210(a), 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 February 1, 1992, at a gaseous
diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak
Ridge, Tennessee; and during such employment:
(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 January 1, 1974, by DOE or
a DOE contractor or subcontractor on Amchitka Island, Alaska, and was
exposed to ionizing radiation in the performance of duty related to the
Long Shot, Milrow, or Cannikin underground nuclear tests.
(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.
Sec. 30.215 How does a claimant establish that the employee has been
diagnosed with cancer or has sustained a consequential injury, illness
or disease?
(a) Evidence that the employee contracted a specified cancer (in
the case of SEC members) or other cancer should include a written
medical document that contains an explicit statement of diagnosis and
the date on which that diagnosis was first made.
(b) An injury, illness, impairment or disability sustained as a
consequence of a diagnosed cancer covered by the provisions of Sec.
30.210(a) and (b) 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 covered cancer. Neither the
fact that the injury, illness, impairment or disability manifests
itself after a diagnosis of a covered cancer, nor the belief of the
claimant that the injury, illness, impairment or disability was caused
by the covered cancer is sufficient in itself to prove a causal
relationship.
Eligibility Criteria for Claims Relating to Chronic Silicosis
Sec. 30.220 What are the criteria for eligibility for benefits
relating to chronic silicosis?
To establish eligibility for benefits for chronic silicosis, an
employee or his or her survivor must show that:
(a) The employee is a DOE employee, or a 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
Sec. 30.5(v)) located in Nevada or Alaska for tests or experiments
related to an atomic weapon, and has been diagnosed with chronic
silicosis (as defined in Sec. 30.5(j)); or
(b) The employee has been diagnosed with an illness or disease that
arose as a consequence of the accepted chronic silicosis.
Sec. 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 Sec.
30.220(a), the claimant may aggregate the days of service at more than
one qualifying site.
Sec. 30.222 How does a claimant establish that the employee has been
diagnosed with chronic silicosis or has sustained a consequential
injury, illness or disease?
(a) A written diagnosis of the employee's chronic silicosis (as
defined in Sec. 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
the National Institute for Occupational Safety and Health 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 disability sustained as a
consequence of accepted chronic silicosis covered by the provisions of
Sec. 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 disability
[[Page 78897]]
and the accepted chronic silicosis. Neither the fact that the injury,
illness, impairment or disability manifests itself after a diagnosis of
accepted chronic silicosis, nor the belief of the claimant that the
injury, illness, impairment or disability was caused by the accepted
chronic silicosis, is sufficient in itself to prove a causal
relationship.
Eligibility Criteria for Certain Uranium Employees
Sec. 30.225 What are the criteria for eligibility for benefits 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 the 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 the 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 illness
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 the RECA.
Sec. 30.226 How does a claimant establish that a covered uranium
employee has sustained a consequential injury, illness or disease?
An injury, illness, impairment or disability sustained as a
consequence of a medical condition covered by the provisions of Sec.
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 disability and the accepted medical condition. Neither
the fact that the injury, illness, impairment or disability manifests
itself after a diagnosis of a medical condition covered by the
provisions of Sec. 30.225(a), nor the belief of the claimant that the
injury, illness, impairment or disability was caused by such a
condition, is sufficient in itself to prove a causal relationship.
Subpart D--Adjudicatory Process
Sec. 30.300 What process will OWCP use to decide claims and to
provide for administrative review of those decisions?
OWCP district offices will issue recommended decisions with respect
to claims. All recommended decisions, including those granting and
denying benefits under 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 any 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.
Recommended Decisions on Claims
Sec. 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 to the facts as reported or obtained upon investigation.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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 Sec. 30.310, the FAB may issue a final decision
accepting the recommendation of the district office as provided in
Sec. 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.
Sec. 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 Sec. 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 Sec. 30.316).
[[Page 78898]]
Sec. 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.
Sec. 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 Sec. 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.
Sec. 30.315 May a claimant postpone a hearing?
(a) The FAB will entertain any reasonable request for scheduling
the hearing, but such requests should be made at the time the hearing
is requested. Scheduling is at the sole discretion of the FAB reviewer,
and is not reviewable. Once the hearing is 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). When the
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 is hospitalized for a reason which is not
elective, or where the death of the claimant's parent, spouse, or child
prevents attendance at the hearing, a postponement may be granted upon
proper documentation.
(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.
Sec. 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 Sec. 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 Sec. Sec. 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 Sec. 30.311 that is
pending at the FAB for more than one year from the date that the period
of time described in Sec. 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 Sec. 30.319 has been filed.
(e) A copy of the final decision of the FAB will be mailed to the
claimant's
[[Page 78899]]
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.
Sec. 30.317 Can the FAB request a further response from the claimant
or remand 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
remand the claim to the district office for further development without
issuing a final decision, whether or not requested to do so by the
claimant.
Sec. 30.318 Can the FAB consider an objection to a determination by
HHS with respect to an employee's dose reconstruction?
(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 remanded 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 arguments concerning the
application of that methodology should be considered by HHS and may
remand the case to the district office for referral to HHS for such
consideration.
Sec. 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 Sec. 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) 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 hearing is not available as part of the
reconsideration process. If the FAB denies the request for
reconsideration, the decision in question shall be considered ``final''
on the date the request is denied.
(d) A claimant may not seek judicial review of a decision on his or
her claim under the EEOICPA until OWCP's decision on the claim is final
pursuant to Sec. 30.316(d).
Reopening Claims
Sec. 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 Sec. 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 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 Sec. 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 radiation, beryllium or
silica, or identifies either a change in the probability of causation
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, 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
Sec. 30.400 What are the basic rules for obtaining medical care?
(a) A covered employee who fits into at least one of the
compensable claim categories 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, retroactive to the date the employee filed a
claim for benefits under the EEOICPA (see Sec. 30.100(c)). The
employee need not be disabled to receive such treatment. When a
survivor receives payment, OWCP will pay for such treatment if the
covered 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, the employee should consult OWCP prior
to obtaining it.
(b) Any qualified physician or qualified hospital may provide such
services, appliances and supplies. A qualified provider of medical
support services may also furnish appropriate services, appliances, and
supplies. OWCP may apply a test of cost-effectiveness to appliances and
supplies. With respect to prescribed medications, OWCP may require the
use of generic equivalents where they are available.
Sec. 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
[[Page 78900]]
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.
Sec. 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.
Sec. 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.
Sec. 30.404 Will OWCP pay for transportation to obtain medical
treatment?
(a) The employee is entitled to reimbursement of reasonable and
necessary expenses, including transportation needed to obtain
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 approval 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. 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 standard form designated for medical travel refund requests
is Form OWCP-957 and should be used to seek reimbursement under this
section. This form can be obtained from OWCP.
Sec. 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
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 covered by the
EEOICPA, or the need for a new physician when an employee has moved.
Sec. 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
Sec. 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.
Sec. 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, OWCP will
base its determination of entitlement on that medical conclusion. A
difference in medical opinion sufficient to be considered a conflict
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 either a second opinion
physician or an OWCP medical adviser or consultant, 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.
Sec. 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 all necessary and
reasonable expenses incident to such an examination, including
transportation costs and actual wages lost for the time needed to
submit to an examination required by OWCP.
Medical Reports
Sec. 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;
[[Page 78901]]
(h) The treatment given or recommended for the claimed occupational
illness; and
(i) All other material findings.
Sec. 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 EE-7 as a guide for the preparation of his or
her initial medical report. 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.
Sec. 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 accepted by OWCP, a
prognosis, and the physician's opinion as to the continuing causal
relationship between the need for additional treatment and the covered
occupational illness.
Medical Bills
Sec. 30.420 How are medical bills submitted?
Usually, medical providers submit bills directly for processing.
The rules for submitting and processing bills are stated in subpart H
of this part. An employee claiming reimbursement of medical expenses
should submit an itemized bill as described in Sec. 30.702.
Sec. 30.421 What are the time frames for submitting bills?
To be considered for payment, bills 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, whichever is later.
Sec. 30.422 If OWCP reimburses an employee only partially 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 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, OWCP shall advise the employee 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 may request reconsideration of
the fee determination as set forth in Sec. 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
Sec. 30.500 What special statutory definitions apply to survivors
under the EEOICPA?
For the purposes of paying compensation to survivors, EEOICPA
applies the following definitions:
(a) Surviving spouse means the wife or husband of a deceased
covered employee who was married to that individual for at least one
year immediately before the death of that individual.
(b) Child or children includes a recognized natural child of a
deceased covered employee, a stepchild who lived with that individual
in a regular parent-child relationship, and an adopted child of that
individual.
(c) Parent includes fathers and mothers of a deceased covered
employee through adoption.
(d) Grandchild means a child of a child of a deceased covered
employee.
(e) Grandparent means a parent of a parent of a deceased covered
employee.
Sec. 30.501 What order of precedence will OWCP use to determine which
survivors are entitled to receive compensation under the EEOICPA?
If OWCP determines that a survivor or survivors are entitled to
receive compensation under the EEOICPA because a covered 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 Sec. 30.5(ee)(2) of these regulations:
(a) If there is a surviving spouse, the compensation shall be paid
to that individual.
(b) If there is no surviving spouse, the compensation shall be paid
in equal shares to all children of the deceased covered employee.
(c) If there is no surviving spouse and no children, the
compensation shall be paid in equal shares to the parents of the
deceased covered employee.
(d) 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 employee.
(e) 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 employee.
(f) Notwithstanding the other paragraphs of this section, if there
is a surviving spouse and at least one child of the deceased covered
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 employee who is a minor at the time of
payment.
Sec. 30.502 When is entitlement for survivors determined for purposes
of the EEOICPA?
Entitlement to any lump-sum payment for survivors under the EEOICPA
will be determined as of the time OWCP makes such a payment.
Payment of Claims and Offset for Certain Payments
Sec. 30.505 What procedures will OWCP follow before it pays any
compensation?
(a) In cases involving the approval of a claim, OWCP shall take all
necessary steps to determine the amount of any offset of EEOICPA
benefits, and to verify the identity of the covered 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 to execute
and provide any necessary affidavit described in Sec. 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
record or document or to provide access to information, such failure or
refusal may be deemed to be a rejection of the
[[Page 78902]]
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 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
(other than litigation for workers' compensation) seeking damages for
any occupational illnesses covered by the EEOICPA. Even if someone
other than the covered employee receives a payment pursuant to a final
judgment or settlement in litigation seeking damages for any
occupational illness covered by the EEOICPA (e.g., the surviving spouse
of a deceased covered employee), the receipt of any such payment must
be reported since it constitutes a payment solely for an occupational
illness covered by the EEOICPA.
(1) For the purposes of this paragraph only, ``litigation seeking
damages'' refers to any request or demand for money by the covered
employee, or by another individual if the covered employee is deceased,
made or sought in a civil action or in anticipation of the filing of a
civil action, solely for any occupational illness covered by the
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 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 employee or the
estate of a deceased covered employee not for any occupational illness
covered by the EEOICPA (e.g., a covered 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 the 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 (other than
contingent awards) and any medical expenses for treatment provided on
or after the date the covered 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 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 payment first. If the amount to be subtracted exceeds the
lump-sum payment, 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 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 award under section 5 of the RECA
reduced by the full amount of a payment made pursuant to a final
judgment or settlement in litigation seeking damages. In that case,
OWCP will not reduce EEOICPA benefits by the same amount (but will
reduce EEOICPA benefits by the amount of any surplus final judgment or
settlement payment that remains).
(c) Except as provided in Sec. 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, or every person with
power of attorney for a claimant, and require such person or persons to
sign a Form EE-20 indicating acceptance of the payment. 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. Signing and returning the form within
the required time shall constitute acceptance of the payment, unless
the individual who has signed the form dies prior to receiving the
payment, in which case the person who then 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.
Sec. 30.506 To whom and in what manner will OWCP pay compensation?
(a) Except with respect to claims related to beryllium sensitivity,
payment shall be made to the covered employee, or to the person with
power of attorney for the covered employee, unless the covered employee
is deceased at the time of the payment. In all cases involving a
deceased covered employee, payment shall be made to 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) and 7384u(e) of
the EEOICPA.
(b) Compensation for any consequential illness or disease is
limited to payment of medical benefits for that illness or disease.
(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 employee may receive more than one lump-sum payment
under these regulations for any occupational illnesses he or she
contracted. However, any individual, including a covered employee who
has received a lump-sum payment for his or her own occupational
illness, may receive one lump-sum payment for each deceased covered
employee for whom he or she qualifies as an eligible surviving
beneficiary.
[[Page 78903]]
Sec. 30.507 What compensation will be provided to covered employees
who only establish beryllium sensitivity?
The establishment of beryllium sensitivity does not entitle a
covered employee, or the eligible surviving beneficiary or
beneficiaries of a deceased covered employee, to any lump-sum payment
provided for under the EEOICPA. Instead, a covered employee whose sole
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 Sec. 30.400 of these
regulations.
Sec. 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
employee's beryllium sensitivity. Monitoring shall also include regular
medical examinations, with diagnostic testing, to determine if the
covered employee has established chronic beryllium disease.
Overpayments
Sec. 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
beneficiary will be presumed to have received the notice of payment,
whether mailed or transmitted electronically.
Sec. 30.511 What is an ``overpayment'' for purposes of the EEOICPA?
An ``overpayment'' is any amount of compensation paid under
sections 7384s or 7384u of the EEOICPA to a recipient that constitutes:
(a) Payment where no amount is payable under this part; or
(b) Payment in excess of the correct amount determined by OWCP.
Sec. 30.512 How does OWCP determine that a beneficiary owes a debt as
the result of the creation of an overpayment?
OWCP will notify the beneficiary of the existence and amount of any
overpayment, and request the beneficiary to voluntarily return the
overpaid amount or provide OWCP with evidence and/or argument
contesting the existence or amount of an overpayment. Within 30 days of
the issuance of such notification, a beneficiary who believes that OWCP
made a mistake in determining the fact or amount of an overpayment may
submit written comments and documentation in support of his or her
position contesting the existence or amount of such overpayment to
OWCP. After considering any written documentation or argument submitted
to OWCP within the 30-day period, OWCP will issue a determination on
the question of whether a debt is owed to OWCP. If OWCP determines that
a debt is owed by the beneficiary, it will forward a copy of that
determination to the beneficiary and advise him or her that unless the
debt is voluntarily repaid it will pursue collection of the overpayment
through DOL's debt collection procedures found at 29 CFR part 20.
Sec. 30.513 How are overpayments collected?
The overpaid individual shall refund to OWCP the amount of the
overpayment as soon as possible. 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 individual fails to make such refund, OWCP
may recover the same 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
Sec. 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 Sec. 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 the 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 sign the Form EE-
20, described in Sec. 30.505(c) of these regulations, which indicates
acceptance of a compensation payment.
Sec. 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 the 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.
Sec. 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.
Sec. 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 the claim, more than
the percentages of the lump-sum payment made to the claimant set out in
paragraph (b) of this section.
[[Page 78904]]
(b) The percentages referred to in paragraph (a) of this section
are:
(1) 2 percent for the filing of an initial claim with OWCP; plus
(2) 10 percent with respect to objections to a recommended decision
denying payment of lump-sum compensation.
(c) Any representative who violates this section shall be fined not
more than $5,000.
(d) The fee limitations described in this section shall not apply
with
respect to representative services that are not rendered in
connection with a claim pending before OWCP.
Third Party Liability
Sec. 30.605 What rights does the United States have upon payment of
compensation under the EEOICPA?
If an illness for which compensation is payable under the 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 the 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 illness.
Sec. 30.606 Under what circumstances must a recovery of money or
other property in connection with an illness for which benefits are
payable under the 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.
Sec. 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.
Sec. 30.608 How does the United States calculate the amount to which
it is subrogated?
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 an
employee or eligible surviving beneficiary, less charges for any
medical file review (i.e., the physician does not examine the employee)
done at the request of OWCP. Charges for medical examinations also may
be subtracted if the employee or eligible surviving beneficiary
establishes that the examinations were required to be made available to
the employee under a statute other than the EEOICPA.
Sec. 30.609 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an illness covered by
the EEOICPA a recovery that must be reported to OWCP?
Since an injury caused by medical malpractice in treating an
illness covered by the EEOICPA is also covered under the EEOICPA, any
recovery in a suit alleging such an injury is treated as a recovery
that must be reported to OWCP.
Sec. 30.610 Are payments to an employee or 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 an employee or 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 illness covered by the Act, they are not considered a
recovery that must be reported to OWCP.
Sec. 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 the EEOICPA will be treated as a separate injury.
(b) If an illness covered under the 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 United States is
subrogated.
Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons
Employers
Sec. 30.615 What type of tort suits filed against beryllium vendors
or atomic weapons employers may disqualify certain claimants from
receiving benefits under EEOICPA?
Section 7385d of the EEOICPA provides that a tort suit (other than
an administrative or judicial proceeding for workers' compensation)
solely for injuries arising out of an exposure to beryllium or
radiation covered by the EEOICPA, filed against a beryllium vendor or
an atomic weapons employer, by a covered employee, or an eligible
surviving beneficiary or beneficiaries of a deceased covered employee
without an independent cause of action, will disqualify that individual
or individuals from receiving benefits under the EEOICPA unless the
suit is terminated in accordance with the requirements of Sec. Sec.
30.616 through 30.619 of these regulations.
Sec. 30.616 What happens if this type of tort suit was filed prior to
October 30, 2000?
(a) If a tort suit described in Sec. 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 Sec. 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 EEOICPA benefits
unless they dismiss the tort suit prior to December 31, 2003.
Sec. 30.617 What happens if this type of tort suit was filed during
the period from October 30, 2000 through December 28, 2001?
(a) If a tort suit described in Sec. 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 EEOICPA benefits
unless they dismiss the tort suit on or before the last permissible
date described in paragraph (b) of this section.
[[Page 78905]]
(b) The last permissible date is the later of:
(1) April 30, 2003; or
(2) The date that is 30 months after the date the claimant or
claimants first became aware that an illness of the covered employee
may be connected to his or her exposure to beryllium or radiation
covered by the 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.
Sec. 30.618 What happens if this type of tort suit is filed after
December 28, 2001?
(a) If a tort suit described in Sec. 30.615 is filed after
December 28, 2001, the claimant or claimants will be disqualified from
receiving any EEOICPA benefits if a final court decision is entered
against them.
(b) If a tort suit described in Sec. 30.615 is filed after
December 28, 2001 and a final court decision has not yet been entered
against the claimant or claimants, they will also be disqualified from
receiving any EEOICPA benefits unless they dismiss 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) April 30, 2003; or
(2) The date that is 30 months after the date the claimant or
claimants first became aware that an illness of the covered employee
may be connected to his or her exposure to beryllium or radiation
covered by the 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.
Sec. 30.619 Do all the parties to this type of tort suit have to take
these actions?
The type of tort suits described in Sec. 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 employee and his or her spouse, with the covered employee
filing for chronic beryllium disease and the spouse filing for loss of
consortium due to the covered employee's exposure to beryllium.
However, since the spouse of a living covered employee could not be an
eligible surviving beneficiary under the EEOICPA, the spouse would not
have to comply with the termination requirements of Sec. Sec. 30.616
through 30.618. A similar result would occur if a tort suit were filed
by both the spouse of a deceased covered employee and other family
members (such as children of the deceased covered employee). In this
case, the spouse would be the only eligible surviving beneficiary of
the deceased covered employee under 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
Sec. Sec. 30.616 through 30.618.
Sec. 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 the EEOICPA?
Prior to authorizing payment on a claim, 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, solely for injuries arising out of an exposure to
beryllium or radiation covered by the EEOICPA, 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.
Subpart H--Information for Medical Providers
Medical Records and Bills
Sec. 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 the EEOICPA so they can supply OWCP with a history of the claimed
occupational illness, a description of the nature and extent of the
claimed occupational illness, the results of any diagnostic studies
performed, and the nature of the treatment rendered.
Sec. 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 Sec. 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), Form 79-1A (for pharmacies), or other
form as warranted, and submit the form promptly for processing.
(b) The provider shall identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the Centers for
Medicare and Medicaid Services Common Procedure Coding System (CCPCS)
code, the National Drug Code (NDC), 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) 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 CCPCS/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 CCPCS/CPT codes
exist shall also be coded individually using the coding scheme noted in
this section. Services for which there are no CCPCS/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
CCPCS/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 Form 79-1A and submit them promptly for
processing. Bills for prescription medications must include the NDC
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
[[Page 78906]]
stationery and submit them promptly for processing.
(d) By submitting a bill and/or accepting payment, the provider
signifies that the service for which reimbursement 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
reimbursement 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 Form 79-1A (for pharmacies); contain the signature or
signature stamp of the provider; and identify the procedures using
CCPCS/CPT codes, RCCs, or NDCs. Otherwise, the bill may be returned to
the provider for correction and resubmission.
Sec. 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 due to an occupational illness, he or
she may submit an itemized bill on Form OWCP-1500 or CMS-1500, together
with a medical report as provided in Sec. 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 CCPCS/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 bill 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, the
employee should submit the bill in accordance with the provisions of
Sec. 30.701(a). Any request for reimbursement must be accompanied by
evidence, as described in paragraph (a) 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, with
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
Sec. 30.705.
(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, OWCP will advise the employee 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 may request reconsideration of the fee
determination as set forth in Sec. 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 appealed amount, OWCP will initiate exclusion
procedures as provided by Sec. 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.
Sec. 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
Sec. 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
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.
Sec. 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 CCPCS/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.
Sec. 30.707 How are payments for particular services calculated?
Payment for a procedure identified by a CCPCS/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
[[Page 78907]]
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
Sec. 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.
Sec. 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 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 NDCs, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.
Sec. 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.
Sec. 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.
Sec. 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) The provider should make such a request to the district office
with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
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 an exception. 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, Washington, DC 20210,
or on the Internet at www.dol.gov/esa/regs/compliance/owcp/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.
[[Page 78908]]
Sec. 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
reimbursement from the employee for additional amounts.
(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 Sec. 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 Sec. 30.715(h).
Exclusion of Providers
Sec. 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 Sec. 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.
Sec. 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 has been convicted of a
crime described in Sec. 30.715(a), or has been excluded or suspended,
or has resigned in lieu of exclusion or suspension, from participation
in any program as described in Sec. 30.715(b).
(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.
Sec. 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
Sec. 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.
Sec. 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 Sec. 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.
Sec. 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
[[Page 78909]]
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 Sec. 30.720. The filing of a request for a hearing within
the time specified shall stay the effectiveness of the decision to
exclude.
Sec. 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 Sec. 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.
Sec. 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.
Sec. 30.722 How are advisory opinions obtained?
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:
(a) 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;
(b) 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.
Sec. 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.
Sec. 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.
Sec. 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;
[[Page 78910]]
(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.
Sec. 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 Sec. 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.
Signed at Washington, DC, this 13th day of December, 2002.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 02-31841 Filed 12-24-02; 8:45 am
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