DEPARTMENT
OF LABOR
Office
of Workers’ Compensation Programs
20
CFR Parts 1 and 30
RIN
1215-AB51
Performance
of Functions; Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act
AGENCY: Office of Workers’ Compensation Programs,
Employment Standards Administration, Labor.
ACTION: Interim final rule; request for comments.
SUMMARY: This document contains the interim final
regulations governing the administration of the Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended (EEOICPA or Act) by the
Department of Labor (Department or DOL).
Part B of the Act provides uniform lump-sum payments and medical
benefits to covered employees and, where applicable, to survivors of such employees,
of the Department of Energy (DOE), its predecessor agencies and certain of its
vendors, contractors and subcontractors.
Part B of the Act also provides smaller uniform lump-sum payments and
medical benefits to individuals found eligible by the Department of Justice
(DOJ) for benefits under section 5 of the Radiation Exposure Compensation Act (RECA)
and, where applicable, to their survivors.
Part E of the Act
provides variable lump-sum payments (based on a worker’s permanent impairment
and/or years of established wage-loss) and medical benefits for covered DOE
contractor employees and, where applicable, provides variable lump-sum payments
to survivors of such employees (based on a worker’s death due to a covered
illness and any years of established wage-loss). Part E of the Act also provides these same
payments and benefits to uranium miners, millers and ore transporters covered
by section 5 of the RECA and, where applicable, to survivors of such
employees. The
Office of Workers’ Compensation Programs (OWCP) administers the adjudication of
claims and the payment of benefits under EEOICPA, with the Department of Health
and Human Services (HHS) estimating the amounts of radiation received by
employees alleged to have sustained cancer as a result of such exposure and
establishing guidelines to be followed by OWCP in determining whether such
cancers are at least as likely as not related to employment. Both DOE and DOJ are responsible for
notifying potential claimants and for submitting evidence necessary for OWCP’s
adjudication of claims under EEOICPA.
DATES: Effective Date:
This interim final rule is effective on
Applicability
date: This interim final rule applies to all claims filed on or after
Compliance Date: Affected parties do not have to comply with
the new information collection requirements in §§ 30.102, 30.231, 30.232,
30.806, 30.905 and 30.907 until DOL publishes in the Federal Register the
control number assigned by the Office of Management and Budget (OMB) to these
information collection requirements.
Publication of the control number will notify the public that OMB has
approved the new information collection requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). It should be noted that OMB approval of the
new information collection requirements will be a revision to the currently
approved collection in OMB Control No. 1215-0197.
Comments: The Department invites comments on the
interim final rule from interested parties.
Comments on the interim final rule must be received by
ADDRESSES: You may submit comments on the interim final
rule, identified
by Regulatory Information Number (RIN) 1215-AB51, by any ONE of the following
methods:
Federal e-Rulemaking Portal: The
Internet address to submit comments on the rule is www.regulations.gov. Follow the website instructions for
submitting comments.
E-mail: Comments on the rule may be submitted by
e-mail to OWCP-DEEOIC-REG-1215-AB51@dol.gov.
You must include “RIN 1215-AB51” in the subject line of the e-mail containing
your comments.
Mail: Submit written comments to
Shelby Hallmark, Director, Office of Workers’ Compensation Programs, Employment
Standards Administration, U.S. Department of Labor, Room S-3524,
Instructions: All comments must include the RIN 1215-AB51 for
this rulemaking. Receipt of any comments, whether by mail,
Internet, or e-mail, will not be acknowledged. Because
DOL continues to experience delays in receiving postal mail in the
Comments on the interim final rule will be
available for public inspection during normal business hours at the address
listed above for mailed comments. Persons
who need assistance to review the comments will be provided with appropriate
aids such as readers or print magnifiers. Copies of this interim final rule may be
obtained in alternative formats (e.g., large print, audiotape or disk)
upon request. To schedule an appointment
to review the comments and/or to obtain the interim final rule in an
alternative format, contact OWCP at 202-693-0031 (this is not a toll-free
number).
Written comments on the new information
collection requirements described in this interim final rule should be sent to
the Office of Information and Regulatory Affairs, Office of Management and
Budget, Attention: Desk Officer for
Employment Standards Administration,
FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of Workers’
Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S-3524,
Individuals with hearing or speech impairments
may access this telephone number via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I.
Background
The Energy Employees Occupational Illness
Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et
seq., was originally enacted on
The
initial version of EEOICPA also created a second program (known as Part D of
the Act) that required DOE to establish a system by which DOE contractor
employees (and their eligible survivors) could seek assistance from DOE in
obtaining state workers’ compensation benefits if a Physicians Panel determined
that the employee in question had sustained a covered illness as a result of
work-related exposure to a toxic substance at a DOE facility. A positive panel finding that was accepted by
DOE required DOE, to the extent permitted by law, to order its contractor not
to contest the claim for state workers’ compensation benefits. However, Congress amended EEOICPA in Subtitle
E of Title XXXI of the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004),
by abolishing Part D of the Act and creating a new Part E (codified at 42
U.S.C. 7385s through 7385s-15) that it assigned to DOL for administration. Part E establishes a new system of variable
federal payments for DOE contractor employees, uranium workers covered by
section 5 of RECA, and eligible survivors of such employees. Congress also amended several of the other
provisions contained in EEOICPA that applied to Part B and specified that DOL
was to prescribe regulations implementing the amendments to EEOICPA and
commence administration of Part E within 210 days of its enactment.
II.
Administrative Procedure Act Issues
Section 7385s-10(e) of EEOICPA clearly directs
the Secretary of Labor to “prescribe regulations necessary for the
administration of [Part E]. . .not later than 210 days after the date” the
Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 was
enacted, and further authorizes the Secretary to “prescribe interim final
regulations necessary to meet” this 210-day deadline. The Department believes that this grant of authority
to the Secretary to prescribe interim final regulations by
Therefore, the Department believes that the
“good cause” exception to APA notice and comment rulemaking applies to this
rule. Under that exception, pre-adoption
procedures are not required “when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). DOL cannot fully adjudicate claims under Part
E of EEOICPA until these regulations are promulgated. The steps necessary for the usual notice and
comment under the APA could not be completed in time for the Department of
Labor to commence administration of Part E by the deadline of May 26,
2005: approval of the notice of proposed
rulemaking by the Secretary and OMB; publication in the Federal Register;
receipt of, consideration of, and response to comments submitted by interested
parties; modification of the proposed rules, if appropriate; final approval by
the Secretary; clearance by OMB; and publication in the Federal Register. Accordingly, the Department believes that
under 5 U.S.C. 553(b)(B), good cause exists for waiver of notice and comment
rulemaking procedures because issuance of proposed rules would be impracticable
and contrary to the public interest.
While notice and comment rulemaking is
being waived, the Department is interested in comments and advice regarding
changes that should be made to these interim regulations. The Department will carefully consider all
comments on the regulations contained in this interim final rule received on or
before
Under the APA, substantive rules generally
cannot take effect until 30 days after the rule is published in the Federal
Register. However, section 553(d)(3)
of the APA states that agencies may waive this 30-day requirement for “good
cause” and establish an earlier effective date.
As explained above, the Department believes that there is “good cause”
for waiver of the APA requirement for notice and comment rulemaking because it
would be both impractical and contrary to the public interest for the
Department to fulfill that requirement.
Similarly, the Department believes that the “good cause” exception to
the 30-day effective date requirement for substantive rules in the APA applies
to this rule, because observing this requirement would be both impractical and
contrary to the public interest. As noted
above, DOL will not be able to fully adjudicate claims under Part E of EEOICPA until the regulations in this rule are
in effect. Since Congress has directed
DOL to commence administration of Part E no later than May 26, 2005 in section 7385s-10(f)(1) of
EEOICPA, the Department believes that “good cause”
exists for waiver of the usual 30-day effective date requirement for
substantive rules and for this rule to become effective immediately upon the
date of its publication in the Federal Register.
III.
Overview of Regulatory Changes
Congress, in enacting Part B of EEOICPA,
created a program to ensure an efficient, uniform, and adequate compensation
system for certain employees of DOE, its vendors, contractors, and
subcontractors, who contracted beryllium-, silica-, and radiation-related
health conditions as a result of their employment in the development of nuclear
weapons. When it amended EEOICPA to
create Part E, Congress established a second program in an effort to also ensure
an equally efficient, uniform, and adequate compensation system for DOE
contractor employees and RECA section 5 workers who contracted illnesses due to
their exposures to toxic substances as a result of employment at a DOE facility
or a RECA section 5 facility, as appropriate.
These regulations describe the processes that OWCP will use so that employees, and, when
applicable, their survivors, will receive the benefits provided by Part B and
Part E of EEOICPA in the efficient and uniform manner intended by
Congress. The following discussion
describes the many significant changes to the regulations that currently appear
as 20 CFR parts 1 and 30, but does not include any discussion of corrections of
typographical errors, or minor wording changes and clarifications that do not
affect the substance of the existing regulations.
20 CFR Part 1
This part is the same as current part 1 (§§
1.1 through 1.6), with the exception of the authority citation, and is
reprinted in full for the ease of the reader.
The authority citation has been updated to reflect that Congress
assigned responsibility for administration of the new Part E of EEOICPA
established by Public Law 108-375 to DOL.
20 CFR Part 30
Subpart A—General Provisions
This subpart is substantially the same as the
current subpart A (§§ 30.0 through 30.17).
The amended subpart adds material describing the expanded
responsibilities of DOL under EEOICPA, as well as definitions necessary for
administration of Part E of the Act.
Introduction
Section 30.0 now describes, in general
terms, the types of compensation available under both Parts B and E of EEOICPA,
the persons to whom this compensation may be paid, and the differing
eligibility requirements that apply to claimants under Part B and Part E. Section 30.2 has been updated to briefly
describe how the tasks involved in administering Part B and Part E of EEOICPA
have been assigned, both within DOL and among the Secretaries of Labor, Health and Human Services,
and Energy, and the Attorney General, following the amendments enacted on
October 28, 2004, while § 30.3 summarizes how the existing and new regulations
in this part are organized by subject area.
Definitions
Amended § 30.5 compiles the definitions for
the principal terms used in this part and is substantially unchanged from the
existing section. It includes terms
specifically defined in EEOICPA that, for the convenience of the user of this
part, are repeated in this section. The
Department seeks comments on all of the definitions provided in § 30.5,
including, in particular, those addressed in the following paragraphs.
Section 3168 of Public Law 108-375 amended
the prior statutory definition of atomic weapons employee at 42 U.S.C.
7384l(3) to add employees who did not work during the period their employer had
a contract with DOE and were instead only employed during a period of residual radioactive
contamination as determined by the National Institute for Occupational Safety
and Health (NIOSH). Thus, the regulatory
definition of this term in § 30.5(c) has been modified to reflect this amendment.
The § 30.5(p) definition of covered Part
E employee is intended to serve as a shorthand term and refers to both DOE
contractor employees (defined in section 7385s(1) of the Act) and RECA section
5 uranium workers (defined in section 7385s-5(b)(3) of the Act) who have been
determined by OWCP to have contracted covered illnesses through an exposure to
toxic substances at a DOE facility or a RECA section 5 facility, as
appropriate. In order to make it
consistent with (and also distinguish it from) § 30.5(p), the definition of covered
employee in existing § 30.5(p) has been amended to read as covered Part B
employee and has been moved to amended § 30.5(q).
In order to allow readers of this rule to
readily distinguish between the illnesses that are compensable under Parts B
and E, this section also includes regulatory definitions of covered illness
in amended § 30.5(r) and occupational illness in amended §
30.5(bb). While neither of these terms
are altered in any fashion in this rule, they are both defined in this section
to highlight the need to differentiate between an occupational illness that is
compensable under Part B of the Act, and a covered illness that is compensable
under Part E.
The Department defines Department of
Energy facility in § 30.5(v) by repeating the definition found in section
7384l(12) of the Act. As noted in
amended § 30.5(x)(2), DOL adopts the list of facilities established by the
Department of Energy that is in effect on the date of publication of this
Interim Final Rule (69 FR 51825). DOL
will periodically update this list as it deems appropriate in its sole
discretion by publishing a revised list of covered facilities in the Federal
Register. Determinations of the
Director that a facility is a Department of Energy facility is solely
for the purpose of administering the EEOICPA.
As noted above, Public Law 108-375 abolished
Part D of the Act and, at the same time, established a new Part E that
maintained the former Part D’s focus on covered illnesses of employees who were
exposed to a “toxic substance” at a DOE facility. Because section 7385s-4(c) of EEOICPA requires
DOL to use the causation standard from DOE’s former Part D regulations when it determines
if an employee has sustained a covered illness due to exposure to a toxic
substance at a DOE facility, § 30.5(ii) sets out the same definition for toxic
substance that originally appeared in DOE’s regulations for former Part D
at 10 CFR 852.2 for use under Part E. As
DOE explicitly indicated when it published its final regulations on
Information in Program Records
Existing § 30.11 describes how all records
relating to claims for benefits filed under the Act are covered by the Privacy
Act and are described in a system of records entitled DOL/ESA-49. This system of records is maintained by and
under the control of OWCP. All records
relating to a claim obtained by OWCP from the claimant or any other source are
maintained by OWCP in a case record. A
claimant may obtain, without charge, one complete copy of the records in the
case record. This will allow a claimant
to obtain a copy of any medical, employment, exposure or other evidence that
might be of use to a physician of the claimant’s choosing in providing medical
evidence to OWCP necessary to establish a claimant’s entitlement to benefits
available under the Act. Should OWCP
obtain further records after furnishing a free copy of a case record to a
claimant, the claimant can obtain one copy of those further records, without
charge, by requesting them from OWCP.
Subpart B—Filing Claims; Evidence and
Burden of Proof; Special Procedures for Certain Cancer Claims
This subpart is substantially similar to the
current subpart B, which describes the early steps in OWCP’s claims
adjudication process and includes a general description of the evidence an
employee or survivor must submit to meet his or her burden of proof under Parts
B and E of the Act. As explained in §
30.111, the claimant bears the burden of proving by a preponderance of the
evidence the existence of each and every criterion necessary to establish
eligibility under any claim category in Part B or Part E. It also explains the special procedures used
in the adjudication of claims for radiogenic cancer under Parts B and E that do
not involve members of the Special Exposure Cohort.
Filing Claims for Benefits Under Part B
and Part E of EEOICPA
Current §§ 30.100, 30.101 and 30.102
(renumbered as § 30.103 in this rule) have been revised to accommodate the
addition of Part E claims to the existing claims adjudication process. Sections 30.100 and 30.101 now include new
language that a claim for benefits under Part E, including a claim originally
filed with DOE as a claim for assistance under former Part D (which was
repealed on October 28, 2004), will not be considered to be “filed” earlier
than October 30, 2000. Also, the
language in these same two sections that employees or survivors can choose to
file a claim for benefits for only certain potentially compensable conditions
and forgo filing for a condition for which a payment has been received that
would necessitate an offset of EEOICPA benefits is new, although it describes the
current policy of OWCP. New § 30.102
describes how covered Part E employees who have previously been awarded
impairment or wage-loss benefits under Part E of the Act can file claims for additional
periods of wage-loss and/or an increased percentage of permanent impairment.
Verification of Alleged Employment
Current § 30.106, which describes DOE’s employment verification
responsibilities in the context of claims of survivors, is consolidated into §
30.105 in this rule, which now describes these responsibilities in the context
of both survivors’ and employees’ claims.
New § 30.106 sets out the current practice of OWCP and DOE of arranging for
other entities to provide OWCP with information needed to verify alleged employment,
when necessary.
Evidence and Burden of Proof
Existing § 30.111 describes how a claimant
bears the burden of proving by a preponderance of the evidence the existence of
each and every criterion necessary to establish eligibility under any
compensable claim category. OWCP collects
a variety of evidence that will assist a claimant in meeting his or her burden
of proof. In addition to employment
verification information obtained by OWCP, discussed above, in the course of
developing a case OWCP obtains from DOE and its contractors and subcontractors
and other sources a variety of medical, environmental, exposure and other
information relevant to individual employees or the facilities in general.
When a claims examiner reviews a submission
by a claimant and determines that the medical evidence is insufficient to meet
the claimant’s burden of proof, the claimant can be referred to one or more
physicians with appropriate expertise for an opinion on any issue or issues
relevant to adjudication of the claim.
When OWCP makes these referrals, the physician will be asked relevant
questions and provided with a Statement of Accepted Facts prepared by OWCP and
all relevant records from the case file.
Alternatively, and in the case of a claim by a survivor, a Statement of
Accepted Facts prepared by OWCP and all relevant records can be forwarded to
one or more physicians for their review without the necessity of an
examination. Thus, in a case where the
claimant is unable to provide sufficient medical evidence from a physician with
the necessary expertise, OWCP can, at its expense, obtain the opinion of a
physician with the appropriate expertise.
Special
Procedures for Certain Radiogenic Cancer Claims
Section 30.115, which explains the special procedures used in the early
adjudication of claims for radiogenic cancers that do not seek Part B benefits
under the Special Exposure Cohort provisions, has been modified slightly to
include new language stating that except for Part B claims previously accepted
under section 7384u of the Act, all claims seeking benefits under Part E for
radiogenic cancers will be forwarded to HHS for dose reconstruction.
Subpart C—Eligibility Criteria
This subpart is substantially the same as current subpart C (§§ 30.200 through 30.226), with a number of small changes in language to reflect the new responsibilities of DOL under EEOICPA that have resulted from the enactment of Part E. In addition to these small changes (and other changes to reflect existing administrative practices), subpart C has been amended to include the substantive changes discussed below.
Eligibility
Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E
Current § 30.210 sets forth the criteria
for eligibility for claims relating to radiogenic cancer under Part B of
EEOICPA; these criteria are quite specific and reflect Part B’s focus on a
narrowly defined list of occupational illnesses. The criteria for claims relating to
radiogenic cancer under Part E of EEOICPA differ (due to differences between
Parts B and E) from the more specific eligibility criteria for radiogenic
cancer claims under Part B and describe a particular subset of the broad range
of covered illnesses that may be compensated under Part E. However, both Part B and Part E provide
coverage for radiogenic cancer.
Therefore, current § 30.210 has been designated as subsection (a) of
amended § 30.210, and new subsection (b) sets forth the statutory eligibility
criteria for claims relating to radiogenic cancer under new Part E. Under Part E, a claim for radiogenic cancer
will be compensable if it is “at least as likely as not” that the cancer is due
to an employee’s work-related exposure to radiation; thus, using the “probability
of causation” (PoC) guidelines established by HHS, this type of claim will be
compensable if the probability of causation is 50% or higher.
Current § 30.213, which describes how OWCP
makes a finding whether a radiogenic cancer claimed under Part B was sustained
in the performance of duty under section 7384n of the Act, has been modified
slightly to more fully describe OWCP’s required use of HHS’s regulatory PoC
guidelines in its adjudication of those questions. OWCP has also decided to utilize the same HHS
PoC guidelines to determine whether exposure to radiation at a DOE facility or
a RECA section 5 facility was at least as likely as not a significant factor in
causing or contributing to a cancer for the purposes of Part E.
The radioepidemiological tables upon which
the PoC guidelines are based were originally developed in response to a 1983
congressional directive in the Orphan Drug Act (Pub. L. 97-414, 42 U.S.C. 241
note), which required HHS to “devise and publish radioepidemiological tables
that estimate the likelihood that persons who have or have had any of the radiation-developed
cancers and who have received specific doses prior to the onset of such disease
developed cancer as a result of such doses.”
Congress required determinations whether radiogenic cancers were to be considered
sustained in the performance of duty for the purposes of Part B to be based
upon those tables in section 7384n(c) of EEOICPA.
OWCP has decided to use those same HHS
regulatory PoC guidelines in its adjudication of claims for radiogenic cancer
under Part E for several reasons. First,
it recognizes that while it is not practical to legislate specific mechanisms
to determine causation for the numerous medical conditions that exposure to
tens of thousands of toxic substances at covered facilities could potentially
cause, Congress has acknowledged that use of HHS’s PoC guidelines is an
appropriate mechanism to determine whether a cancer was at least as likely as
not caused by work-related radiation exposure.
In view of the lack of a scientific basis for attributing any particular
case of cancer to any cause, the epidemiological approach taken by Congress in
Part B, and now to be utilized by OWCP for Part E, is more likely to result in
a scientifically valid and consistent determination process than merely
attempting to reach a determination based on opinions likely to contain a
substantial speculative component. Thus,
the requirement in amended § 30.213 that OWCP use HHS’s PoC guidelines to
adjudicate claims for radiogenic cancer under Part E is both appropriate and
rational.
This conclusion finds further support in
the Report of the NCI-CDC Working Group to Revise the 1985 NIH
Radioepidemiological Tables (September 2003), which found that the PoC
model was a viable method to adjudicate claims for radiation-related instances
of cancer that appropriately summarized “the likelihood that prior radiation
exposure might be causally related to cancer occurrence.” Use of the PoC guidelines for claims
under both Part B and Part E will allow
OWCP to adjudicate the entitlement of radiogenic cancers that are potentially
compensable under Part B and Part E in a uniform manner. Any process for determining coverage of
claims for radiogenic cancers that would yield inconsistent results as to
whether that cancer is covered under Parts B and E is unlikely to be understood
or accepted by claimants and other stakeholders.
The determination by OWCP to utilize the
HHS PoC guidelines will only apply to a determination whether a cancer was
contracted solely through exposure to radiation at a DOE facility or a RECA
section 5 facility, as appropriate. The
HHS PoC guidelines will not be used to determine if a cancer claimed under Part
E was contracted through exposure to radiation combined with exposure to one or
more other toxic substances because the risk models that were used by HHS to
develop the PoC guidelines for cancer at 42 CFR part 81 only address radiation
exposure. When it issued those
regulations on
Thus, when a claim for cancer under Part E
cannot be accepted based on exposure to radiation alone, because the PoC was
found to be less than 50%, the claimant will be given an opportunity to
establish that the cancer was caused by a combination of exposure to radiation
and exposure to one or more other toxic substances. OWCP will adjudicate those claims for cancer
allegedly due to exposures to radiation combined with exposure to one or more
other toxic substances using the eligibility criteria for other covered
illnesses in new §§ 30.230 through 30.232 discussed below.
Eligibility
Criteria for Other Claims Under Part E
New §
30.230 sets forth the criteria established by section 7385s-4 of EEOICPA that
OWCP uses to determine if an employee contracted a covered illness. In addition, this new section also states
that these criteria are satisfied by showing that the covered illness at issue was
accepted in a prior claim under Part B of EEOICPA or section 5 of RECA, or that
the Secretary of Energy under the former Part D accepted a Physicians Panel
positive determination regarding the existence of the covered illness prior to
the effective date of this rule. Section
30.230(d)(2) is included for the purpose of informing claimants of the kinds of
information that OWCP will consider in determining whether it is “at least as
likely as not” that exposure to a toxic substance at a Department of
Energy facility or at a RECA section 5 facility, as appropriate, was a
significant factor in aggravating, contributing to, or causing the illness. OWCP will make that determination after
carefully weighing all of the evidence supplied by the claimant or obtained by
OWCP from other sources.
Two of
the elements that a claimant must establish before OWCP can determine that an
employee contracted a covered illness are that the employee was employed at
either a DOE facility or a RECA section 5 facility, and that he or she was
exposed to a toxic substance at work.
New § 30.231 describes how to prove employment at either a DOE facility
or a RECA section 5 facility, as well as how to prove that the employee was
exposed to a toxic substance while so employed.
New §
30.232 sets forth how a claimant can prove that the employee was diagnosed with
a covered illness, or has sustained an injury, illness, impairment or disease
as a consequence of a covered illness.
This section describes the type of medical information, releases, and
work histories that must be submitted to enable OWCP to make this finding. The section also makes it clear that the
claimant may present other evidence deemed necessary by OWCP to establish the
diagnosis or prove the existence of an injury, illness, impairment or disease.
Subpart D—Adjudicatory Process
This
subpart is substantially the same as current subpart D (§§ 30.300 through
30.320), with a number of small changes in language to emphasize that this
subpart only applies when OWCP adjudicates claims for entitlement under the
Act; certain other decisions are made using other administrative processes
(such as those used to resolve medical billing disputes). In addition to these small changes, subpart D
has been amended to include new § 30.301, which implements new section 7384w in
Part B of the Act, providing that an OWCP district office claims examiner and/or
a Final Adjudication Branch (FAB) reviewer may, in the exercise of their
discretion, issue subpoenas for persons and documents when adjudicating a Part
B claim. A subpoena will be issued at
the request of a claimant only by a FAB reviewer in connection with FAB’s
adjudication process for Part B claims.
Section 30.301 also sets forth the methods for requesting issuance of
the subpoenas.
Section 30.302 is also new and contains
information about the fees and costs payable to lay and expert witnesses who
are subpoenaed by OWCP. The section
explains who is responsible for making the payment to the witness, and the
factors that will govern this determination.
New § 30.303 is intended to clarify the duties of both DOE and/or DOE
contractors to provide information or documents in response to a request from
OWCP under Part E of EEOICPA.
Hearings
and Final Decisions on Claims
Section 30.317 has been rewritten to better
describe the FAB’s discretion to return a claim to the district office for the
issuance of a new recommended decision before issuing a final decision. This new language is being added so the
regulations reflect OWCP’s current administrative practice and is not intended
to change the substance of the current regulation. Similar minor edits of a non-substantive nature
were made to § 30.318(a) and (b).
Section 30.318(c) is new and is being added to more fully explain OWCP’s
existing policy regarding objections to the PoC methodology established by HHS
regulations, and to OWCP’s application of that methodology. Section 30.319(c), regarding requests for
reconsideration of FAB decisions, has been revised to describe current
procedures for reviewing these requests, granting or denying them, and
determining the effective date of a resulting new final decision. This revision reflects current OWCP practice
with no substantive changes intended.
Subpart E—Medical and Related Benefits
This subpart is substantially the same as
current subpart E (§§ 30.400 through 30.422), since only minor modifications
were necessary in order to accommodate the addition of approved claims under
Part E of EEOICPA to OWCP’s existing processes for providing authorized medical
benefits and treatment. No changes were
made to the sections that describe the processes OWCP uses to refer employees
for directed medical examinations, which will also occur in the adjudication of
claims under Part E.
Subpart F—Survivors; Payments and
Offsets; Overpayments
The overall organization of this subpart is
substantially the same as the current subpart F (§§ 30.500 through 30.513), other
than the slight modifications that were necessary throughout the subpart to
accommodate the addition of approved claims under Part E of EEOICPA to OWCP’s existing claims payment
processes. The amended subpart also
contains regulatory language implementing OWCP’s newly granted statutory authority
to waive the required recovery of such benefits.
Survivors
The amended versions of §§ 30.500 through
30.502 now identify those persons who may be potentially eligible to receive
monetary compensation under Part B and/or Part E, based on their relationship
to a deceased
covered Part B employee or a deceased covered Part E employee. These sections also highlight the differences
in the order of precedence that OWCP must use to determine which eligible
surviving beneficiary or beneficiaries to pay under Parts B and E of EEOICPA.
Section 30.500(a)(2) contains the statutory
definition of a “child” and also includes the more restrictive statutory
criteria that an individual must satisfy to be a “covered” child under Part
E. These criteria for Part E of the Act
include the same statutory definition of a “child” used in Part B of the Act, as
well as specific age, educational or self-sufficiency criteria that must be met
as of the date of the deceased Part E employee’s death. As amended by this rule, § 30.501 still
describes the order of precedence among survivors under EEOICPA; the order of
precedence that OWCP must use under Part B now appears without substantive
change as § 30.501(a), while new § 30.501(b) describes the order of precedence
for Part E survivor claims. It should be
noted that survivors who are either grandparents, grandchildren or parents of a
deceased Part E employee are not considered eligible surviving beneficiaries of that
individual under Part E. Also, the comparable
alternative order of precedence provisions in § 30.501(a)(6) for Part B and §
30.501(b)(3) for Part E, which describe those statutorily mandated instances
when a surviving spouse must share a lump-sum payment with minor children of
the deceased employee, are not triggered under the exact same circumstances—§
30.501(a)(6) requires that the child of the deceased Part B employee be a minor
at the time benefits are paid by OWCP, while § 30.501(b)(3) only requires that
the child of the deceased Part E employee satisfy the additional criteria for a
“covered” child (as described above) as of the time of the death of the
employee, not also at the time of payment of benefits by OWCP.
Payments and Offsets
Amended §§ 30.505 through 30.507 and newly
added § 30.509 set out the rules for the payment of monetary compensation to
claimants under EEOICPA for both Part B and Part E. Although the process for paying claims under
both parts of the Act is similar, there are some differences that are reflected
in these amended sections. New §
30.505(d) describes the maximum aggregate compensation that is payable under
Part E (exclusive of medical benefits), as set forth in 42 U.S.C.
7385s-12. The statute limits the
aggregate compensation (other than medical
benefits) that OWCP may pay under Part E to all claimants for each individual
whose illness or death serves as a basis for compensation or benefits under
Part E to a total of
$250,000. This is the only reading of
the statutory language that is consistent with the statutory requirement that
the computation of both impairment benefits and wage-loss benefits under §
7385s-2 be based upon impairment or wage-loss that is “the result of any
covered illness.” This reading is also
consistent with congressional intent, as reflected in the Conference Report for
Public Law 108-375, which states that the “maximum aggregate benefit available
under [Part] E of EEOICPA is $250,000.” See
H.R. Conf. Rep. No. 108-767, at 894 (2004).
Newly added § 30.509 describes the option
that certain claimants under Part E have to choose between receiving the
benefits payable to them as a survivor, and the benefits that would have been
payable to the deceased covered Part E employee if he or she were still living
at the time of payment. This option is
contained in 42 U.S.C. 7385s-1(2)(B), and new § 30.509 notes that claimants
will only have the opportunity to make this choice in certain limited circumstances. First, a survivor of a covered Part E
employee may choose to exercise this option only if the employee died after
filing his or her Part E claim (or a claim under former Part D), but prior to
receiving any compensation under the Act.
In addition, the covered Part E employee’s death must have been solely caused
by a non-covered illness or illnesses for this option to be available to the
survivor. If both of these requirements
are met, it is likely that a survivor would choose to receive the benefits that
the deceased covered Part E employee would have received since, in that
situation, no survivor benefits would be payable for the death. Section 30.509(c) points out, however, that since impairment determinations can only
be made in conformance with subpart J of these regulations, and therefore can
only be made if the case record contains rationalized medical evidence that is
sufficiently detailed to meet the pertinent requirements of the American
Medical Association’s Guides to the Evaluation of Permanent Impairment
(AMA’s Guides), OWCP will not make an impairment determination for a
deceased covered Part E employee if the medical evidence in the case record
does not satisfy those requirements.
Overpayments
Amended §§ 30.510 through 30.512 are
substantially the same as the current versions of these sections and continue
to describe how OWCP identifies overpayments, notifies individuals that they were
overpaid, and together with new §§ 30.513 through 30.520, considers requests by
individuals to waive recovery of such overpayments under the new statutory
authority granted DOL by Congress in section 7385j-2 of EEOICPA.
New § 30.513 sets out the initial requirement
in 42 U.S.C. 7385j-2(b) that only those individuals who were “without fault” in
the creation of an overpayment of EEOICPA benefits may request waiver of
recovery of the overpayment. If the
individual satisfies this threshold requirement, new § 30.514 describes the two
statutory criteria, also found in section 7385j-2(b), that OWCP will use to
evaluate the individual’s request for waiver.
Waiver of recovery may be granted by OWCP if either: (1) recovery of the overpayment would defeat
the purpose of the EEOICPA; or (2) recovery of the overpayment would be against
equity and good conscience. These two
criteria are discussed in greater detail in new §§ 30.516 and 30.517,
respectively, which set out the general parameters that OWCP will observe when
it decides if a request for waiver satisfies either of the two statutory
criteria. New § 30.515 also notes that
OWCP will not automatically find the individual to be “without fault” in the
creation of an overpayment simply because OWCP erred in making the
payment. Any such error on OWCP’s part
cannot vitiate the statutory criteria for eligibility to any benefits payable
out of the fund established by Congress in section 7384e(d) of the Act.
To enable OWCP to consider requests for
waiver of recovery of overpayments, and to set a reasonable schedule for
repayment of the overpayment if waiver is denied, new § 30.518 notes that OWCP
may require the recipient of an overpayment of compensation to submit pertinent
information relating to his or her income, expenses and assets. This same section also notes that a failure
to submit this requested information within 30 days of the request from OWCP
will result in the denial of any request for waiver of recovery, and that no
further requests for waiver will be considered until the requested information
is provided to OWCP. New § 30.519 notes
that after considering any such evidence or argument submitted in support of a
waiver request, OWCP will issue a final decision on the matter of the
overpayment, and that the adjudicatory processes described in subpart D will
not be used to issue these particular decisions. Since a decision whether to waive recovery
of an overpayment is not a decision on
an individual’s underlying entitlement under the Act and is similar to certain other
decisions that OWCP issues (like decisions on medical billing disputes) without
using the adjudicatory processes described in subpart D, any such decision will
be issued by the OWCP district office with jurisdiction over the claim.
Existing § 30.513 has been modified and now
appears as new § 30.520 in this rule. As
the former § 30.513 did, this new section notes the statutory authority,
independent from EEOICPA, that OWCP has
to recover overpayments of EEOICPA benefits.
It also notes OWCP’s new authority, derived from 42 U.S.C. 7385j-2(a),
to recover an overpayment of EEOICPA benefits by decreasing any later benefit
payments to which the overpaid individual is entitled.
Subpart G—Special Provisions
This subpart is substantially the same as
current subpart G (§§ 30.600 through 30.620), other than the slight
modifications that were necessary in order to accommodate the addition of
claims under Part E of the Act to the existing regulations governing third
party liability, and some minor clarifications of the regulations describing the
effect of tort suits against beryllium vendors and atomic weapons employers on
claims under Part B of the Act. This
subpart also contains a fuller regulatory description of the restrictions on
representative fees in sections 7385g and 7385s-9 of EEOICPA, as well as
several new sections that describe how OWCP will “coordinate” its payment of
Part E benefits with benefits received under a state workers’ compensation
system for the same covered illness or illnesses.
Representation
While §§ 30.600, 30.601 and 30.602 remain
substantially the same as in the current rule, § 30.603 has been amended to better
describe the fees that may be collected by a representative who assists with an
EEOICPA claim. This section also
identifies DOJ as the executive branch department with the authority for
prosecuting violations of the fee-for-service limitations in the Act. Lastly, amended § 30.603 clarifies the
statement in existing § 30.603 that the fee limitations do not apply to
representative services rendered in connection with a petition filed with a
U.S. District Court or any subsequent appeal.
Coordination of Part E
Benefits with State Workers’ Compensation Benefits
Section 7385s-11 of EEOICPA requires that
Part E benefits be coordinated with state workers’ compensation benefits. This reduces the possibility of claimants
receiving duplicate payments for the same covered illness. While this provision appears to create
tension between it and section 7385 of EEOICPA (now applicable to both Parts B
and E), which excludes workers’ compensation benefits from the general offset
required by that section, OWCP is implementing the provisions of section
7385s-11 in order to effectuate all of the provisions of the recent
amendments. Section 7385s-11 provides
specific authority to coordinate Part E benefits and amounts received under
state workers’ compensation laws. OWCP
views the more specific authority in that section as taking precedence over the
general exclusion in section 7385, because failing to do so would, in effect,
negate the enactment of section 7385s-11.
New §§ 30.625, 30.626 and 30.627 thus briefly describe how OWCP may
coordinate benefits payable under Part E with certain payments the claimant receives
under a state workers’ compensation program for the same covered illness. Section 30.625 generally discusses what
“coordination of benefits” means for purposes of administering Part E. Section 30.626 discusses how OWCP will perform
this required coordination of benefits, including how it will calculate the
amount of any coordination. Section
30.627 indicates that OWCP has sole authority to waive the coordination of
benefits, in accordance with the explicit terms of section 7385s-11(b) of the
Act, and discusses circumstances that might warrant such a waiver.
Subpart H—Information for Medical
Providers
This subpart is substantially the same as
current subpart H (§§ 30.700 through 30.726), modified slightly throughout to
reflect current forms and billing terminology, and also to accommodate minor
changes to OWCP’s medical bill processing system. It also contains one change of a substantive
nature in § 30.722, which is one of the sections that describes the process
OWCP uses to exclude medical providers from participation in the EEOICPA
program. The substance of current §
30.722 now appears as subsection (b) of amended § 30.722, and a new subsection
(a) has been added to permit medical providers to request subpoenas upon a
showing of good cause in exclusion proceedings that involve medical services
provided under Part B of EEOICPA.
Subpoenas are now available under those particular circumstances,
pursuant to the authority granted by new section 7384w in Part B of EEOICPA.
Subpart I—Wage-Loss Determinations Under
Part E of EEOICPA
Subpart I is new and sets forth the procedures that OWCP uses to
determine whether a covered Part E employee sustained wage-loss as a result of
contracting a covered illness, and the amount of any such wage-loss that is
compensable under Part E of EEOICPA to covered Part E employees, and survivors
of deceased covered Part E employees.
General Provisions
Section 30.800 indicates that pursuant to section 7385s-2(a)(2) of
EEOICPA, years of wage-loss occurring up to and including the calendar year
that a covered Part E employee reaches “normal retirement age” may be
compensable under Part E. This section
further notes that in making these determinations, OWCP is required to make
findings regarding the “average annual wage” of the covered Part E employee
prior to contracting a covered illness, the percentage of such average annual
wage the covered Part E employee earned
during the alleged subsequent calendar years of wage-loss, and whether
the wage-loss during the years in question was due to the covered illness.
Certain terms used in determining compensation based on wage-loss are
defined in the statute or these regulations, and are compiled in § 30.801. Average annual wage refers to the
baseline wage against which OWCP will measure a subsequent calendar-year wage
earned by a covered Part E employee, and is defined in § 30.801(a) the same way
that the term is defined in section 7385s-2(a)(2)(A)(ii) of EEOICPA. Given the specific language used in that section of the Act, OWCP will
determine that the average annual wage of a covered Part E employee is $0 if he
or she was retired during the 12 quarters immediately preceding the quarter
during which he or she first experienced wage-loss due to exposure to a toxic
substance at a DOE facility or RECA section 5 facility, as appropriate. Section
30.801(b) defines normal retirement age as the age at which an
employee may receive an unreduced Social Security retirement benefit, which is
the same way this statutory term is described in section 7385s-2(a)(2)(A)(iii). That age varies (by date of birth) and is set by section 216(l) of the Social
Security Act, 42 U.S.C. 416(l). Because
OWCP will make its determinations under this subpart using quarterly periods,
many of the regulatory terms used in subpart I refer to quarters of years
rather than months. Section 30.801(c) thus defines quarter as the
three-month period January through March, April through June, July through
September, or October through December.
Section 30.801(d) indicates that a quarter during which the employee
was unemployed means
any quarter during which the covered Part E employee had $700 (in constant 2005
dollars) or less in wages, unless the quarter is one during which the employee
was retired. However,
claimants have the opportunity to submit probative factual evidence that the
employee was actually unemployed during a time period other than a quarter as
defined in § 30.801(c). If probative evidence
of unemployment using a time period other than a quarter is submitted, OWCP will
decide if, in the sole exercise of its discretion, it should modify its finding
regarding the average annual wage of the covered Part E employee.
Finally, § 30.801(e) defines a year of wage-loss as a calendar year in which the employee’s earnings were less than what OWCP fo