EEOICP Regulations

[Federal Register: May 25, 2001 (Volume 66, Number 102)]
[Rules and Regulations] 
[Page 28947-29003]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my01-8] 


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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; Final Rule


[[Page 28948]]


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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

AGENCY: Office of Workers' Compensation Programs, Employment Standards 
Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document contains the interim final regulations governing 
the administration of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA or Act), that provides lump-sum 
payments and medical benefits to covered employees and, where 
applicable, 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 for the payment of smaller 
lump-sum payments and medical benefits to individuals already found 
eligible for benefits under section 5 of the Radiation Exposure 
Compensation Act and, where applicable, their survivors. The Department 
of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) 
administers the adjudication of claims and payment of benefits under 
the EEOICPA, with the Department of Health and Human Services (HHS) 
calculating the amounts of radiation received by employees alleged to 
have sustained cancer as a result of such exposure and establishing 
guidelines to be followed in determining whether such cancers are at 
least as likely as not related to employment. The Department of Energy 
(DOE) and the Department of Justice (DOJ) are responsible for notifying 
potential claimants and submitting evidence necessary for DOL's 
adjudication of claims under the EEOICPA.

DATES: Effective Date: This interim final rule is effective July 24, 
2001.
Compliance Dates: Affected parties do not have to comply with the 
information collection requirements in Secs. 30.100, 30.101, 30.102, 
30.111, 30.112, 30.206, 30.207, 30.213, 30.214, 30.216, 30.217, 30.401, 
30.415, 30.416, 30.417, 30.420, 30.421, 30.505, 30.617, 30.700, 30.701 
and 30.702 until the Department publishes in the Federal Register the 
control numbers assigned by the Office of Management and Budget (OMB) 
to these information collection requirements. Publication of the 
control numbers notifies the public that OMB has approved these 
information collection requirements under the Paperwork Reduction Act 
of 1995.
Comments: The Department invites written comments on the interim 
final rule from interested parties. Comments on the interim final rule 
must be received by August 23, 2001. Written comments on collections of 
information subject to the Paperwork Reduction Act must be received by 
July 24, 2001.

ADDRESSES: Submit written comments on the interim final rule to Shelby 
S. Hallmark, Acting Director, Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, Room S-
3524, 200 Constitution Avenue, N.W., Washington, DC 20210.
Written comments on the collection of information requirements 
should be sent to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Attention: Desk Officer for Employment 
Standards Administration, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Shelby S. Hallmark, Acting Director, 
Office of Workers' Compensation Programs, Employment Standards 
Administration, U.S. Department of Labor, Room S-3524, 200 Constitution 
Avenue, N.W., Washington, D.C. 20210, Telephone: 202-693-0036 (this is 
not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. What Is the Energy Employees Occupational Illness Compensation 
Program?

The Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA), Public Law 106-398, 114 Stat. 1654, 1654A-1231 (October 30, 
2000), was enacted as Title XXXVI of the Floyd D. Spence National 
Defense Authorization Act for Fiscal Year 2001. The EEOICPA established 
a compensation program to provide a lump sum payment of $150,000 and 
medical benefits as compensation to covered employees suffering from 
designated illnesses incurred as a result of their exposure to 
radiation, beryllium, or silica while in the performance of duty for 
DOE and certain of its vendors, contractors and subcontractors. This 
legislation also provided for payment of compensation to certain 
survivors of these covered employees, as well as for payment of a 
smaller lump sum ($50,000) to individuals (who would also receive 
medical benefits), or their survivor(s), who were determined to be 
eligible for compensation under section 5 of the Radiation Exposure 
Compensation Act (42 U.S.C. 2210 note).
The EEOICPA further instructed the President to designate one or 
more Federal agencies or officials to carry out the compensation 
program. Pursuant to this statutory provision, the President issued 
Executive Order 13179 (``Providing Compensation to America's Nuclear 
Weapons Workers'') of December 7, 2000 (65 FR 77487) which assigned 
primary responsibility for administering the compensation program to 
DOL. This executive order also directed HHS to, among other things, 
develop guidelines to assess the likelihood that an employee with 
cancer developed that cancer in the performance of duty at a DOE 
facility or atomic weapons facility, to establish methods for 
calculating radiation dose estimates for individuals applying for 
benefits under this program for whom there are inadequate records of 
radiation exposure, and perform such calculations. The President's 
order instructed DOE to provide DOL and HHS all relevant information to 
which it may have access, and to assist in the development of claims 
under the EEOICPA and state workers' compensation programs. Finally, 
the executive order directed DOJ to identify and notify RECA 
beneficiaries of their possible entitlement to benefits under the 
EEOICPA and to assist DOL in the adjudication of those claims.

II. Issuance of Interim Final Rule

Section 3611(a) of the EEOICPA both establishes the Energy 
Employees Occupational Illness Compensation Program and provides that 
``[t]he President shall carry out the compensation program through one 
or more Federal agencies or officials, as designated by the 
President.'' Pursuant to this statutory provision, the President issued 
Executive Order 13179 section 2(a)(ii) of which directed the Secretary 
of Labor to ``promulgate regulations for the administration of the 
Program, except for functions assigned to other agencies pursuant to 
the Act or this order;'' no later than May 31, 2001. The Act further 
stipulates that its provisions for both lump-sum payments and medical 
benefits shall take effect ``on July 31, 2001, unless Congress 
otherwise provides in an Act enacted before that date.'' The Department 
believes that Congress's explicit mandate in the Act that the 
provisions for both lump-sum payments and medical benefits take effect 
on July 31, 2001 contemplates displacement of Administrative

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Procedure Act (APA) notice and comment procedures and requires the 
publication of an Interim Final Rule as an initial matter.
Therefore, the Department believes that the ``good cause'' 
exception to APA notice and comment rulemaking applies to this rule. 
Under that exception, no pre-adoption procedures are 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). The EEOICPA was 
enacted to provide efficient, uniform and adequate compensation for 
radiation, beryllium, and silica related health conditions to the 
civilian men and women who, over the past 50 years, performed duties 
uniquely associated with the nuclear weapons production and testing 
programs of DOE and its predecessor agencies. The enactment of EEOICPA 
was, in part, the result of the failure of existing state workers' 
compensation programs to provide uniform and adequate compensation for 
these types of occupational illnesses. DOL cannot begin to accept and 
process claims under the 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 program to become 
effective by July 31, 2001: approval of the notice of proposed 
rulemaking by the Secretary and OMB; publication in the Federal 
Register; receipt of, consideration of, and response to the 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. Moreover, completion of these 
steps will further delay the implementation of the program. 
Accordingly, the Department believes that under 5 U.S.C. 553(b)(B), 
good cause exists for waiver of Notice of Proposed Rulemaking since 
issuance of proposed rules would be impracticable and contrary to the 
public interest.
While notice of proposed rulemaking is being waived, the Department 
is interested in comments and advice regarding changes that should be 
made to these interim rules. We will fully consider any comments on 
these rules that we receive on or before August 23, 2001, and will 
publish the Final Rule with any necessary changes.

III. What Are the Paperwork Requirements (Subject to the Paperwork 
Reduction Act) Imposed Under EEOICPA and the Department's 
Regulations, and How Are Comments Submitted?

The new collections of information contained in this rulemaking 
have been submitted for review to OMB in accordance with the Paperwork 
Reduction Act of 1995. 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 Secs. 30.100, 30.101, 30.102, 30.111, 30.112, 30.206, 30.207, 
30.213, 30.214, 30.216, 30.217, 30.415, 30.416, 30.417, 30.505, 30.617 
and 30.702, and they relate to information required to be submitted by 
claimants, medical providers, and witnesses as part of the claims 
adjudication process, as well as to information required to be 
submitted by claimants in connection with the processing of bills. To 
implement all but one of these new collections, the Department is 
proposing to create eight new forms (see sections A through E and 
sections G through I below). One new collection will be implemented 
without any specific form (see section F below).
In addition, this rulemaking contains currently approved 
collections of information in Secs. 30.401, 30.420, 30.421, 30.700, 
30.701 and 30.702, which relate to information required to be submitted 
by claimants and medical providers in connection with the processing of 
bills (see OMB-1215-0055, OMB-1215-0176, and OMB-1215-0194). These 
collections (Forms OWCP-1500, UB-92 and 79-1A) will be revised to 
include EEOICPA respondents.

A. Employee's Claim: Form EE-1 (Secs. 30.100 and 30.102)

Summary: The claims adjudication process for employees begins with 
a requirement that they file a written claim for benefits with the 
Department on or after July 31, 2001. Employees do not need to use the 
``Claim For Benefits Under Energy Employees Occupational Illness 
Compensation Program Act'' (Form EE-1) to initiate this process since 
any written communication that requests benefits under the EEOICPA will 
be considered a claim. They will, however, be required to submit a Form 
EE-1 to insure that OWCP has the basic factual information necessary to 
begin adjudicating the claim. In Form EE-1, the employee is requested 
to provide information with respect to his or her identity, contact 
information, the type of illness being claimed (with date of 
diagnosis), the location or type of employment, whether he or she is a 
member of the Special Exposure Cohort, and whether he or she received 
an award letter under the Radiation Exposure Compensation Act (42 
U.S.C. 2210 note) or filed a lawsuit regarding the claimed illness. 
OWCP may also require employees to provide factual information in 
support of any responses made on Form EE-1. All employees will be 
required to swear or affirm that the information provided on the Form 
EE-1 is true.
Need: Pursuant to the EEOICPA, a claim for benefits is necessary to 
both initiate the claims adjudication process and to establish a 
commencement date for any possible entitlement to medical benefits.
Respondents and proposed frequency of response: It is estimated 
that 43,140 employees annually will file one Form EE-1.
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-1 is estimated to take an average of 
15 minutes per employee for a total annual burden of 10,785 hours.

B. Survivor's Claim: Form EE-2 (Secs. 30.101 and 30.102)

Summary: The claims adjudication process for survivors begins with 
a requirement that they file a written claim for survivor benefits with 
the Department on or after July 31, 2001. Survivors do not need to use 
the ``Claim For Survivors Benefits Under Energy Employees Occupational 
Illness Compensation Program Act'' (Form EE-2) to initiate this process 
since any written communication that requests benefits under the 
EEOICPA will be considered a claim. They will, however, be required to 
submit Form EE-2 to insure that OWCP has the basic factual information 
necessary to begin adjudicating the claim. In Form EE-2, the survivor 
is asked to provide information with respect to both his or her 
identity and the identity of the deceased employee, contact 
information, the type of illness being claimed (with date of 
diagnosis), the location or type of employment, whether the deceased 
employee was a member of the Special Exposure Cohort, and whether he or 
she (or the deceased employee) received an award letter under the 
Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or filed a 
lawsuit regarding the claimed illness. OWCP may also require survivors 
to provide factual information

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in support of any responses made on Form EE-2. All survivors will be 
required to swear or affirm that the information provided on the Form 
EE-2 is true.
Need: Pursuant to the EEOICPA, a claim for survivor's benefits is 
necessary to initiate the claims adjudication process.
Respondents and proposed frequency of response: It is estimated 
that 28,760 survivors annually will file one Form EE-2.
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-2 is estimated to take an average of 
15 minutes per survivor for a total annual burden of 7,190 hours.

C. Employment History: Form EE-3 (Secs. 30.102, 30.111, 30.112, 30.206, 
30.213 and 30.216)

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. Form EE-3 has been 
devised to elicit the basic factual information necessary to enable 
OWCP to make this particular finding of fact. In Form EE-3, the 
respondent (the employee or survivor) is asked to provide information 
with respect to his or her identity and contact information, the 
employee's identity, and the employee's complete employment history 
that includes dates of employment, the name and location of employers, 
position titles and descriptions of work performed, and information 
regarding any dosimetry badges worn. All respondents will be required 
to swear or affirm that the information provided on the Form EE-3 is 
true. Further, the employment history provided on Form EE-3 will be 
provided to DOE for verification.
Need: Documentation of a history of covered employment is one of 
the elements that must be met to establish entitlement to benefits 
under the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 68,584 employees and/or survivors annually will file one Form EE-
3.
Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-3 is estimated to take an average of 1 
hour per response for a total annual burden of 68,584 hours.

D. Employment History Affidavit: Form EE-4 (Secs. 30.102, 30.111, 
30.112, 30.206, 30.213 and 30.216)

Summary: As noted in section C above, 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. In situations where the use of Form EE-3 may not be 
practicable (e.g., due to a lack of available information), Form EE-4 
may be used as an alternate method to provide OWCP with a basic 
employment history by affidavit. In Form EE-4, the respondent (someone 
other than the employee or survivor) is asked to provide information as 
to his or her identity and relationship to the employee, the employee's 
identity, and the employee's employment history that includes dates of 
employment, name and location of employers, descriptions of work 
performed, and an explanation of the basis for the employment history 
provided. All respondents will be required to swear or affirm that the 
factual information provided on the Form EE-4 is true. Further, the 
employment history provided on Form EE-4 will be provided to DOE for 
verification.
Need: Documentation of a history of covered employment is one of 
the elements that must be met to establish entitlement to benefits 
under the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 17,146 respondents annually will file one Form EE-4.
Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-4 is estimated to take an average of 
30 minutes per response for a total annual burden of 8,573 hours.

E. Medical Requirements: Form EE-7 (Secs. 30.102, 30.207, 30.214, 
30.217, 30.415, 30.416 and 30.417)

Summary: Employees and/or survivors claiming benefits under the 
EEOICPA (except for those who have received an award under section 5 of 
the Radiation Exposure Compensation Act (42 U.S.C. 2210 note)) must 
also establish, among other things, that the employee sustained a 
compensable occupational illness. Form EE-7 has been devised to elicit 
the type of medical evidence (prepared by medical providers) needed to 
enable OWCP to make this particular finding of fact. Claimants may also 
be required to submit additional medical evidence (prepared by medical 
providers) as necessary. Form EE-7 describes, in checklist format, both 
the general and specific requirements for medical evidence submitted in 
support of a claim for each of the occupational illnesses covered by 
the EEOICPA.
Need: Documentation of a covered occupational illness 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 68,584 respondents annually will file one response to Form EE-7.
Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total annual burden of 
17,146 hours.

F. Supplemental Medical Evidence (Sec. 30.214)

Summary: Employees and/or survivors claiming that an injury, 
illness or disability was sustained as a consequence of a covered 
cancer must submit a narrative medical report from a medical provider 
which shows a causal relationship between the claimed injury, illness 
or disability and the covered cancer. A standardized form or format 
will not be used for the submission of this information, which will be 
collected on an as-needed basis.
Need: Documentation of a consequential injury is one of the 
elements that must be met to establish entitlement to benefits for such 
a condition under the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 4,500 respondents annually will submit this collection of 
information once.
Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total annual burden of 
1,125 hours.

G. Pre-payment Affidavit: Form EE/EN-15 (Secs. 30.505 and 30.617)

Summary: Once the claims adjudication process has been completed 
and a final decision finding coverage under the EEOICPA has been made, 
the claimant must still provide information to determine if he or she 
is entitled to receive a lump-sum payment, and if so, the amount of 
such lump-sum payment. In Form EE/EN-15, the claimant is requested to 
provide

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information about any tort suits they may have filed against a 
beryllium vendor or atomic weapons employer, and whether they have been 
convicted on fraud charges in connection with the EEOICPA or another 
federal or state workers' compensation law. Form EE/EN-15 also requests 
information on third party settlements, other eligible survivors and 
corrections. All respondents will be required to certify that the 
information provided on Form EE/EN-15 is true.
Need: Documentation of entitlement to a lump-sum payment and the 
level of any such payment is required under the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 10,926 employees and/or survivors annually will file one Form EE/
EN-15.
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-15 is estimated to take an average 
of 40 minutes per response for a total annual burden of 7,284 hours.

H. Acceptance of Payment: Form EE/EN-20 (Secs. 30.505 and 30.617)

Summary: After Form EE/EN-15 is returned (and a determination that 
the claimant is entitled to a lump-sum payment is made and the amount 
of such entitlement has been calculated), the claimant will be informed 
of the award payable under the EEOICPA and that his or her acceptance 
of such payment will be in full satisfaction of all claims arising out 
of an occupational illness covered by the EEOICPA. The ``Acceptance of 
Payment'' (Form EE/EN-20) has been devised for this purpose, and 
requests that the claimant indicate whether he or she accepts or 
rejects the offered payment within 60 days.
Need: Documentation of a claimant's acceptance of a lump-sum 
payment is necessary to establish the full satisfaction of all claims 
arising out of an occupational illness covered by the EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 10,926 employees and/or survivors annually will file one Form EE/
EN-20.
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-20 is estimated to take an average 
of 5 minutes per response for a total annual burden of 911 hours.

I. Medical Reimbursement: Form EE-915 (Sec. 30.702)

Summary: Once a claim has been accepted, the Department will pay 
medical benefits retroactive to the date the claim was filed. The 
``Claim For Medical Reimbursement Under Energy Employees Occupational 
Illness Compensation Program Act'' (Form EE-915) has been devised to 
enable claimants to seek reimbursement for out-of-pocket expenses 
pertaining to the medical treatment, prescription medication, and 
medical supplies obtained due to an accepted occupational illness or 
consequential injury.
Need: Documentation of a claimant's out-of-pocket expenses is 
necessary to establish the amount that is payable as medical benefits 
for an occupational illness or consequential injury covered by the 
EEOICPA.
Respondents and proposed frequency of response: It is estimated 
that 5,095 respondents annually will file four Forms EE-915.
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-915 is estimated to take an average of 
15 minutes per response for a total annual burden of 5,096 hours.
Total public burden: The above information collections have a total 
public burden hour estimate of 126,693. Using the current National 
minimum wage of $5.15 per hour, the total annual public cost estimate 
for all new information collections is estimated to be $652,469.00. 
There are no recordkeeping or collection costs associated with the 
information collected on the EE-1, EE-2, EE-3, EE-4, EE/EN-15, EE/EN-20 
or EE-915. Because the medical information requested by the other two 
information collections is kept as a usual and customary business 
practice, there is no additional recordkeeping or collection cost 
associated with those collections. The only operation and maintenance 
cost will be for postage and mailing. An estimated 50% of the EE-1 and 
EE-2 forms will involve postage and mailing costs; the remainder will 
be received directly by either DOL or DOE personnel. The EE-3 form 
always accompanies the EE-1 or EE-2, therefore no additional postage or 
mailing is required. An estimated annual total of 167,612 mailed 
responses at $0.34 (postage) + $0.03 (envelope) per response would be 
$62,016.44.
Request for comments: The public is invited to provide comments on 
the above-noted new information collection requirements 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 new collection of information, 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 
July 24, 2001.

IV. What Matters Do the Regulations Address?

Congress, in enacting the EEOICPA, created a new Energy Employees 
Occupational Illness Compensation 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. These regulations 
describe the process that DOL will use so that these employees, and, 
when applicable, their survivors, will receive the benefits provided by 
the EEOICPA in the efficient and uniform manner intended by Congress. 
The following discussion describes the regulations that will appear as 
20 CFR parts 1 and 30.

20 CFR Part 1

This part is substantially the same as current part 1 (Secs. 1.1 
through 1.6), with the exception of the updated list of assigned 
functions contained in Sec. 1.2, and is reprinted in full for the ease 
of the reader. This updated list of functions reflects that the 
Assistant Secretary for Employment Standards

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has assigned the Department's responsibilities under the EEOICPA and 
E.O. 13179 to the Deputy Assistant Secretary for Workers' Compensation 
Programs.

20 CFR Part 30

Subpart A--General Provisions

This subpart briefly describes the types of benefits available 
under the EEOICPA and provides a summary of how the Department's 
regulations under the Act are organized. It also describes the effect 
of other general criminal and civil provisions on the EEOICPA claims 
process.

Introduction

Sections 30.1 and 30.2 briefly describe how the tasks involved in 
administering the EEOICPA have been assigned, both within the 
Department and among the Secretaries of Labor, Health and Human 
Services, and Energy, and the Attorney General, while Sec. 30.3 
summarizes how the regulations in this part are organized by subject 
area.

Definitions

This section of the regulation defines the principal terms used in 
this part. It includes terms specifically defined in the 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 used 
in the regulation, including, in particular, those addressed in the 
following paragraphs.
The Sec. 30.5(g) definition of benefit or compensation includes the 
money DOL pays to or on behalf of a claimant as well as any other 
amounts paid for such things as medical treatment, monitoring, 
examinations, services and supplies and the transportation and other 
expenses incurred in securing such medical treatment. This section also 
distinguishes the meaning of the term ``compensation'' as it is used in 
EEOICPA section 3628(a)(1)--the $150,000 lump sum payment--and as it is 
used in EEOICPA section 3630(a)--the $50,000 lump sum payment to 
covered employees or their survivor(s) under section 5 of the RECA.
EEOICPA section 3630(a) describes a covered uranium employee as 
``an individual who receives, or has received, $100,000 under section 5 
of the RECA for a claim made under that Act.'' Because either an 
eligible employee or that eligible employee's survivor(s) may receive 
$100,000 under section 5 of the RECA, interpreting the word 
``individual'' in the section 3630(a) definition of ``covered uranium 
employee'' as either an employee or that employee's survivor(s) results 
in having to award $50,000 to the survivor of a deceased survivor. This 
would create a result that does not appear to have been intended by 
Congress and is inconsistent with the definitions of covered beryllium 
employees, covered employees with cancer, and covered employees with 
chronic silicosis under the EEOICPA. These definitions of covered 
employee include only persons who are or were employees, they do not 
include survivors as covered employees. Such an overly literal 
definition of ``covered uranium employee'' in the EEOICPA is 
inconsistent with the purpose of the EEOICPA ``to provide for timely, 
uniform, and adequate compensation of covered employees and, where 
applicable, survivors of such employees suffering from illnesses 
incurred by such employees in the performance of duty * * *.'' (see 
EEOICPA section 3611(b)). Furthermore, the conference report on the 
EEOICPA also notes that section 3630 establishes ``an additional 
entitlement for certain uranium miners, millers, and transporters, or 
the survivor of any such employee if the employee is deceased, who 
receives, or has received, payment of a claim under the Radiation 
Exposure Compensation Act (42 U.S.C. 2210 note).'' H.R. Conf. Rep. No. 
96-945, at 982 (2000). To avoid compensation of survivors of survivors, 
the Department has defined a ``covered uranium employee'' as an 
employee who has been determined to be entitled to compensation under 
section 5 of the Radiation Exposure Compensation Act, as amended, (42 
U.S.C. 2210 note) for a claim made under that Act.
The EEOICPA does not define disability but uses that term in 
section 3628(a) as a qualification for entitlement to the $150,000 lump 
sum payment. While other federally administered workers' compensation 
programs define ``disability'' to require a claimant to establish a 
loss of wage earning capacity or permanent impairment, it is clear from 
Congress' description of this compensation program in EEOICPA section 
3611(b), that an employee need only establish, to OWCP's satisfaction, 
that he or she has or has had one of the covered occupational 
illnesses, without establishing a loss of wage earning capacity or 
permanent impairment as a result of that illness. The definition of 
``disability'' in Sec. 30.5(w) reflects this Congressional intent.
The EEOICPA defines survivor as any individual or individuals 
entitled to compensation under the survivor provisions of the Federal 
Employees' Compensation Act (FECA), 5 U.S.C. 8133. Therefore, the 
definition of survivor in Sec. 30.5(dd) identifies those individuals 
who would qualify as survivors of a deceased covered employee under 
section 8133 of the FECA. A significant feature of the FECA survivor 
provision is the limitation that the list of eligible individuals does 
not include a child over the age of 18 unless that child is a 
``student'' as defined in section 8101(17) of the FECA, or is incapable 
of self-support. Similarly, non-dependent parents, siblings, 
grandparents and grandchildren do not qualify as survivors.

Information in Program Records

Sections 30.10 and 30.11 describe the Privacy Act system of records 
entitled DOL/ESA-49 that covers all OWCP records relating to claims 
filed under the EEOICPA. This system of records is both maintained by 
and under the control of OWCP. The records contained in DOL/ESA-49 are 
considered confidential and may not be disclosed except as provided by 
the Privacy Act of 1974. Section 30.12 describes the process that must 
be used to either obtain copies of or amend records contained in DOL/
ESA-49.

Rights and Penalties

Section 30.16 makes reference to some of the criminal and civil 
proceedings that can result from filing a fraudulent or false claim or 
statement with OWCP in connection with a claim under the EEOICPA, and 
notes that the Department of Justice has the sole authority to initiate 
criminal proceedings. Section 30.17 sets out the Act's statutory 
requirement for permanent forfeiture of all benefits whenever a 
claimant defrauds the federal government in connection with a claim 
under the EEOICPA or any other federal or state workers' compensation 
law.

Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

This subpart 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. 
It also explains the special procedures used in the early adjudication 
of claims for cancer that do not involve members of the Special 
Exposure Cohort, which includes HHS's responsibility for calculating a 
reconstructed dose.

Claims for Occupational Illness--Employee or Survivor's Actions

Section 30.100 describes how an employee can file (or withdraw) a

[[Page 28953]]

written claim for benefits under the Act, and explains the three 
alternate methods that can be used to ``file'' such a claim for the 
purpose of establishing a commencement date for any possible 
entitlement to medical benefits should the claim ultimately be approved 
by OWCP. Since an employee's possible entitlement to any medical 
benefits under the Act commences on the date the written claim is 
filed, OWCP will choose the earliest filing date from among the three 
alternate methods--the date the claim is mailed to OWCP (as determined 
by postmark), the date the claim is actually received by OWCP, or the 
date the claim is actually received by DOE. Section 30.101 addresses 
these same topics in the context of claims of survivors.
Although use of the claim forms that appear in the list of forms 
contained in Sec. 30.102 is not required to file a claim (a simple 
letter that contains words of claim is legally sufficient), claims 
should be filed using OWCP's official claim forms to ensure that all 
information necessary for the early stages of the claims adjudication 
process has been submitted. Form EE-1 (for an employee claiming for his 
or her own occupational illness) and Form EE-2 (for a survivor of such 
a deceased employee) are provided for these purposes.

Claims for Occupational Illness--Actions of DOE

In light of the broad range of employment situations that could 
lead to an exposure that might result in an occupational illness 
compensable under the Act, the Department has decided to seek the type 
of basic factual information that an employer would otherwise provide 
to OWCP from DOE. Therefore, Sec. 30.105 indicates that DOE will have 
the responsibility to either concur or disagree (or indicate that it 
lacks sufficient information to either concur or disagree) with the 
employment history submitted by the employee in support of his or her 
claim. DOE will also be responsible for helping employees establish, 
through alternate methods, the necessary factual basis to support their 
employment histories when the usual documentary evidence is not 
available. Section 30.106 addresses these same DOE responsibilities in 
the context of claims of survivors.

Evidence and Burden of Proof

Section 30.110 lists the four classes of individuals who are 
entitled to compensation under sections 3623, 3627 and 3630 of the 
EEOICPA, and Sec. 30.111 describes the burden of proof on these 
individuals to establish their entitlement to benefits under the Act. 
While every claimant must establish eligibility by a preponderance of 
the evidence, section 30.111(c) permits the use of written affidavits 
or declarations as evidence of employment history or survivor 
relationship where the claimant attests that actual records on these 
matters do not exist. DOL further assists claimants in the development 
of their claims by notifying the claimant of any deficiency and 
providing an opportunity for correction of the deficiency (section 
30.111(b)).

Special Procedures for Certain Cancer Claims

E.O. 13179 assigns the ``primary responsibility for administering'' 
the compensation program to the Secretary of Labor. However, a portion 
of the adjudication process of claims for cancer that do not involve 
employees who are members of the Special Exposure Cohort (or a survivor 
of such an employee) is assigned to HHS. Accordingly, Sec. 30.115 
indicates that if OWCP determines that such an employee (or a survivor 
of such an employee) has established that he or she contracted cancer 
after beginning covered employment, OWCP will refer the claim to HHS 
for dose reconstruction. This package will include, among other things, 
any employment history compiled by OWCP. It will not, however, 
constitute a recommended or final decision by OWCP on the claim.
After completing such further development of the employment history 
as it may deem necessary, HHS will reconstruct the radiation dose and 
notify the claimant directly of its findings. At the same time, HHS 
will also inform OWCP of its findings regarding the radiation dose, at 
which point OWCP will resume adjudication of the claim (based on the 
reconstructed dose calculated by HHS) and determine whether the 
claimant has met the eligibility criteria set forth in subpart C.

Subpart C--Eligibility Criteria

Eligibility Criteria for Claims Relating to Covered Beryllium 
Illness

Section 30.205 describes the criteria, set forth in sections 
3621(7) and 3621(8) of the EEOICPA, that a claimant must satisfy to 
qualify for compensation for a covered beryllium illness--that he or 
she was (or is a survivor of) a ``covered beryllium employee'' who has 
a covered beryllium illness. Consistent with other federally 
administered workers' compensation laws, this section also provides 
compensation (medical benefits only) for any injury, illness, 
impairment, or disability sustained as a consequence of a covered 
beryllium illness.
To establish the status as a ``covered beryllium employee,'' a 
claimant may submit any trustworthy contemporaneous record that 
establishes proof of employment or presence at a covered facility 
during a period when beryllium dust, particles or vapor was present 
(Sec. 30.206(a)). Section 30.206(b) describes the type of records that 
may be considered as evidence of employment or presence at a covered 
facility. Section 30.207 describes the type of medical evidence 
required to establish beryllium sensitivity and chronic beryllium 
disease as set forth in sections 3621(8) and 3621(13) of the EEOICPA, 
and explains the claimant's burden in establishing a consequential 
injury or illness.

Eligibility Criteria for Claims Relating to Cancer

Section 30.210 describes the two types of employees with cancer for 
whom the EEOICPA provides compensation. To be eligible for compensation 
for cancer, an employee either must be: (1) A member of the Special 
Exposure Cohort (SEC) who was a DOE employee, a DOE contractor 
employee, or an atomic weapons employee who contracted a specified 
cancer after beginning such employment; or (2) a DOE employee, a DOE 
contractor employee, or an atomic weapons employee who contracted 
cancer (that has been determined, pursuant to guidelines promulgated by 
HHS, ``to be at least as likely as not related to such employment''), 
after beginning such employment. Consistent with other federally 
administered workers' compensation laws, this section also provides 
compensation (medical benefits only) for any injury, illness, 
impairment, or disability sustained as a consequence of a covered 
cancer.
Section 30.213(a) describes the criteria set out in section 
3621(14) of the EEOICPA for establishing eligibility as a member of the 
SEC. To satisfy the EEOICPA requirement that an eligible employee must 
have worked at a designated gaseous diffusion plant for a number of 
workdays aggregating at least 250 workdays before February 1, 1992, 
Sec. 30.213(b) allows the claimant to aggregate the days of service at 
more than one gaseous diffusion plant. Section 30.213(c) describes the 
type of evidence a claimant may submit to establish his employment with 
a covered employer under this section. A written medical report that 
includes a

[[Page 28954]]

diagnosis and the date of diagnosis is sufficient to establish either a 
specified cancer, in the case of SEC members, or cancer for other 
covered employees, under Sec. 30.214(a). Section 30.214(b) describes 
the medical evidence required to establish an injury or disease that 
occurs as a consequence of a covered cancer.

Eligibility Criteria for Chronic Silicosis

Section 30.215 sets forth the EEOICPA section 3627 requirements for 
entitlement to compensation for chronic silicosis. To be eligible for 
benefits, the employee must establish employment with the DOE or with a 
DOE contractor and presence for a number of work days aggregating at 
least 250 work days during the mining of tunnels at a DOE facility 
located in Nevada or Alaska, which were used for atomic weapon tests or 
experiments. Section 30.216(c) allows the claimant to aggregate the 
days of service at more than one qualifying site. The employee must 
have been diagnosed with chronic silicosis, supported by medical 
evidence set forth in Sec. 30.217.

Eligibility of Certain Uranium Employees

Section 30.220 describes how beneficiaries of $100,000 under 
section 5 of the RECA establish entitlement to an additional $50,000 
and medical benefits provided by section 3630 of the EEOICPA. Since 
RECA claimants may receive payment under RECA in the form of a promise 
to pay at a future date, the Department has interpreted the requirement 
in section 3630 of the Act that a claimant ``receives or has received 
$100,000'' under RECA to include claimants who receive or have received 
a promise of subsequent payment.

Subpart D--Adjudicatory Process

This subpart describes the adjudicatory process OWCP will follow 
when it issues decisions on claims under the Act. It contains 
information about filing objections following a recommended decision 
and requesting a hearing before OWCP's Final Adjudication Branch (FAB), 
and describes the manner in which the FAB will issue decisions on 
claims after a hearing, a review of the written record, or on a summary 
basis. This subpart also indicates when decisions of the FAB will 
become final, and describes the process whereby OWCP may exercise its 
discretion to modify a final decision, either on its own motion or upon 
the motion of a claimant.

Recommended Decisions on Claims

Sections 30.305 through 30.307 contain a basic description of a 
``recommended'' decision on a claim, which will contain both findings 
of fact and conclusions of law, as appropriate. These sections also 
describe the general process OWCP will use when it issues a recommended 
decision, and indicate to whom OWCP will send the recommended decision. 
It is important to recognize that a recommended decision does not 
constitute a final decision by OWCP on a claim; instead, it only 
represents an initial recommendation made by an OWCP claims examiner. 
Therefore, since a recommended decision will not be OWCP's final 
decision on a claim under the EEOICPA, a claimant may not seek review 
of such decision in federal court.

Hearings and Final Decisions on Claims

Section 30.310 indicates that when the district office issues a 
recommended decision on a claim, it will also forward the record of 
such claim to the FAB, whether the recommended decision was favorable 
or unfavorable to the claimant. Within 60 days of the date the district 
office issues the recommended decision (unless this period is extended 
by the FAB), the claimant must object to specific findings of fact and/
or conclusions of law contained in the recommended decision to trigger 
either a hearing (upon specific request) or a review of the written 
record by the FAB. In the absence of any specific objections, 
Sec. 30.311(a) provides that the FAB will summarily affirm the 
recommended decision without conducting any further review of such 
decision. The Department believes that bringing the claims adjudication 
process to an end when a claimant does not raise any specific 
objections is appropriate, even if the claimant asks for a hearing, 
since the expenditure of administrative resources needed to conduct 
further review of a claim under these circumstances will most likely 
serve no useful purpose given the non-adversarial nature of the claims 
adjudication process. Section 30.311(b) provides that the FAB will also 
summarily affirm the recommended decision, in whole or in part, if the 
claimant waives any objection to all or part of such decision.
If a claimant files specific objections to a recommended decision 
with the FAB, but does not request a hearing on his or her claim, 
Sec. 30.312 states that the FAB will consider the objections by means 
of a review of the written record of the claim. If the claimant only 
objects to a part of the recommended decision (for example, the 
claimant objects to OWCP's rejection of the claim with respect to one 
occupational disease, but does not object to OWCP's acceptance of the 
claim for a different occupational disease), this section notes that 
the FAB has the discretionary authority to issue a decision summarily 
affirming the uncontested part, if such action is appropriate. Section 
30.313 describes the process a FAB reviewer will follow when he or she 
conducts a written review of the record, which provides for the 
submission of additional evidence or argument from the claimant, or at 
the request of the FAB reviewer.
If the claimant files objections and requests a hearing within the 
60-day period referred to above, Sec. 30.314 sets out the general 
procedural framework that a FAB reviewer will follow through the 
completion of the informal hearing process. This section describes a 
FAB reviewer's wide discretion in matters of scheduling and in the 
conduct of the hearing itself. Consistent with the provision in 
Sec. 30.312 allowing partial decisions, Sec. 30.314 also provides that 
if the claimant only objects to a part of the recommended decision, a 
FAB reviewer has the discretionary authority to issue a decision that 
summarily affirms the uncontested part. Section 30.315 completes the 
description of the hearing process by indicating that a claimant may 
only postpone a scheduled hearing in certain limited circumstances, and 
if the hearing cannot be rescheduled in such a way as to prevent delay, 
a review of the written record will be conducted instead. It also 
indicates that a claimant may request a change to a review of the 
written record at any time after requesting a hearing, and that once 
such a change is made, no further opportunity for a hearing will be 
provided.
The varied processes by which the FAB issues decisions on claims 
(or parts of claims) are described in Sec. 30.316. Subsection (a) 
provides for summary affirmance (in whole or in part) of a recommended 
decision when no specified objections have been raised, subsection (b) 
provides for the issuance of a decision on a claim at the conclusion of 
either a hearing or a review of the written record, and subsection (c) 
provides for the automatic affirmance of any recommended decision that 
is pending either a hearing or a review of the written record at the 
FAB for more than one year. Subsection (d) indicates that decisions of 
the FAB issued pursuant to Sec. 30.316(a), (b) or (c) will become final 
upon expiration of 30 days from the date they are issued, unless the 
claimant files a timely request for reconsideration

[[Page 28955]]

under Sec. 30.319, and subsection (e) indicates to whom the FAB will 
send its decision. Section 30.317 further provides that at any point in 
time prior to issuing a decision on a claim, the FAB may request that a 
claimant submit additional evidence or argument and may, in the 
exercise of its discretion, remand a claim to the district office for 
further development without issuing a decision under Sec. 30.316.
Finally, Sec. 30.319 sets out the process whereby a claimant may 
request reconsideration of a decision of the FAB before such decision 
becomes final, and notes that if the request is granted, the FAB will 
review the district office's recommended decision again and issue a new 
decision on the claim without holding a hearing. This section also 
points out that if the FAB denies the request for reconsideration, the 
decision at issue will become final on the date the request is denied. 
In Sec. 30.319(c), the Department describes the point at which a 
decision on a claim under the EEOICPA becomes final for purposes of 
seeking judicial review, which occurs when all administrative review 
opportunities have been exhausted.

Modification

In order to accommodate those rare instances when OWCP may wish to 
reopen a final decision of the FAB, Sec. 30.320 describes OWCP's 
discretionary authority to modify such a decision at any time on its 
own motion. This section also provides that a claimant can move for 
modification within one year of the date the FAB decision became final, 
provided that he or she can establish a mistake of fact in the final 
decision or changed circumstances. If OWCP determines that modification 
is warranted, this section notes that it may issue a new recommended 
decision modifying the prior final decision on a claim. It also notes 
that while any new recommended decision issued on modification will be 
subject to the adjudicatory process described in subpart D, the scope 
of review at the FAB will be limited to the merits of the new 
recommended decision; OWCP's discretionary determination to modify the 
prior final decision will not be reviewable. Subsection (c) completes 
the description of the adjudicatory process by noting that the time 
limitations in Sec. 30.320 will not prevent a claimant from filing 
another claim for a new occupational disease or consequential injury 
not already considered by OWCP, and that regardless of the number of 
claims OWCP accepts, no claimant can receive more than one award of 
monetary compensation under sections 3628(a)(1) or 3630(a) of the Act.

Subpart E--Medical and Related Benefits

This subpart contains a description of the medical benefits that 
are provided to employees under the EEOICPA, the general rules for 
obtaining medical care, and information regarding an employee's initial 
choice of physician. It also describes the manner in which OWCP may 
direct an employee to be examined by another physician of its choosing, 
and how OWCP resolves conflicts in the medical evidence that may arise 
as a result of such an examination. Finally, subpart E describes the 
general requirements for medical reports to be submitted to OWCP, and 
the process to be used by employees to seek reimbursement for medical 
expenses they have paid.

Medical Treatment and Related Issues

Section 30.400 reflects the basic entitlement to medical benefits 
contained in section 3629 of the Act, including the provision that an 
employee's entitlement to such benefits commences upon the date the 
claim is filed. This section also indicates that medical treatment that 
was provided to an employee who dies before the claim is accepted will 
be paid for if the claim is accepted, as long as such treatment was 
provided on or after the date the employee filed his or her claim. 
Section 30.400 indicates that any qualified medical provider may 
provide appropriate services, appliances and supplies.
Consistent with OWCP's definition of ``physician'' set out in 
subpart A, which is the same as the definition set forth in section 
8101(2) of the FECA, Secs. 30.401 and 30.402 describe the special rules 
that will apply to medical services provided by chiropractors and 
clinical psychologists. Generally, chiropractors are limited to 
providing treatment to correct a spinal subluxation, and a diagnosis of 
spinal subluxation as demonstrated by x-ray to exist must appear in the 
chiropractors report before payment of the bill will be considered. 
Clinical psychologists cannot serve as physicians for conditions that 
include a physical component unless they are authorized to do so under 
the applicable state law.
Section 30.403 indicates that the personal care services of a home 
health aide, licensed practical nurse or similarly trained individual 
will be paid for as a medical benefit, so long as such services are 
medically necessary. In addition, Sec. 30.404 indicates that 
transportation and other reasonable and necessary expenses needed to 
obtain authorized medical treatment will be paid for as a medical 
benefit.
Since section 3629(b)(2) of the Act specifically provides employees 
with the right to select an initial treating physician, Sec. 30.405 
indicates that OWCP will provide them with an opportunity to designate 
a treating physician when it accepts the claim. The physician so 
selected can refer the employee to a specialist without first seeking 
approval from OWCP, but in all other situations the employee must make 
a written request to OWCP before he or she changes treating physicians.

Directed Medical Examinations

On occasion, OWCP may need to have an employee examined by a 
physician of its own choosing for a second opinion. Section 30.410 
addresses this need (in a manner consistent with OWCP's practices under 
section 8123 of the FECA) and indicates that an employee may not have 
anyone else present at the examination, other than a physician paid by 
him or her, unless OWCP decides that exceptional circumstances exist. 
This section also indicates that where an actual examination is not 
needed, OWCP may send the case file for a second opinion review.
Also consistent with section 8123 of the FECA, Sec. 30.411 
describes what OWCP will do once it receives the report from the second 
opinion physician. OWCP will base its determination on entitlement on 
the report that has greater probative value, unless there is a conflict 
in the medical evidence between the second opinion physician and the 
employee's physician. A conflict only occurs when two reports of 
virtually equal weight and rationale reach opposing conclusions. When 
this occurs, OWCP will appoint a third physician to make a referee 
examination, and the report of this physician will be entitled to 
special weight sufficient to resolve the conflict if it has sufficient 
probative value. An employee may not have anyone else present at the 
referee examination, unless OWCP decides that exceptional circumstances 
exist, and OWCP may send the case file for review by a referee 
physician if an actual examination is not needed.
Section 30.412 indicates that the costs of the directed medical 
examinations described in Secs. 30.410 and 30.411 will be paid for out 
of the fund as medical benefits. In addition, OWCP will reimburse the 
employee for necessary and reasonable expenses incident to such 
directed medical examinations out of the fund.

[[Page 28956]]

Medical Reports

Section 30.415 contains a general description of what a medical 
report submitted to OWCP from an attending physician should contain, 
and Sec. 30.416 indicates that Form EE-7 should be used as a guide in 
the preparation of medical reports. For cases requiring hospital 
treatment or prolonged care, Sec. 30.417 indicates that periodic 
narrative reports from the attending physician are required, and that 
OWCP may ask the physician to respond to questions regarding continuing 
medical treatment for the accepted occupational illness.

Medical Bills

Medical providers should submit medical bills directly for payment 
out of the compensation fund. However, in those instances where an 
employee pays a medical bill and claims for reimbursement out of the 
fund, Sec. 30.420 refers the employee to the itemized bill procedures 
described in Sec. 30.702, while Sec. 30.421 sets out the standard 
industry practice of requiring submission of medical bills by the later 
of the end of the calendar year after the year the expense was 
incurred, or the end of the calendar year after the year OWCP accepted 
the claim.
Since the OWCP fee schedule sets maximum limits on amounts payable 
for many medical services, Sec. 30.422 notes that an employee may be 
only partially reimbursed for medical expenses because the amount he or 
she paid exceeds the maximum allowable charge. When this happens, OWCP 
will advise the employee of his or her responsibility to ask the 
provider to refund the excess charge paid to the employee, or to credit 
the employee's account. If the provider refuses to do so, OWCP may 
authorize reasonable reimbursement to the employee after reviewing the 
facts and circumstances involved.

Subpart F--Survivors; Payments and Offsets; Overpayments

Survivors

Sections 30.500 through 30.502 address the identification of 
persons entitled to receive monetary compensation based on their 
relationship to a deceased covered employee under the Act. The class of 
persons who may be a ``survivor'' under the EEOICPA is taken from 
section 8133 of the FECA, as required by section 3621(18) of the 
EEOICPA. Any reference to section 8133 of the FECA is solely for the 
purpose of identifying the individuals who may be survivors under 
EEOICPA. Section 8109 of the FECA provides the order of precedence and 
proportion of monetary compensation to be paid to the eligible 
surviving beneficiaries, if any, under sections 3628(e)(2) and 
3630(e)(2) of the EEOICPA. These regulations specifically detail who 
may be entitled to receive compensation based upon their survivor 
status. It should be noted that widows, widowers and minor children are 
the only persons who need not be dependent upon the deceased covered 
employee to receive monetary compensation as a survivor. The remaining 
persons, who may be survivors under section 8133 of FECA, must have 
been ``dependent'' upon the deceased covered employee at his or her 
time of death. The result of this provision is that adult children of 
deceased covered employees, as well as other remaining family members, 
such as ``non-dependent'' parents, siblings, grandparents or 
grandchildren, will not be eligible to receive any monetary 
compensation under this Act. Finally, OWCP will take all necessary 
steps to determine the identity and correct amount of compensation to 
be paid to each and every eligible surviving beneficiary.

Payments and Offsets

Sections 30.505 through 30.507 address the rules for the payment of 
monetary compensation to claimants under the EEOICPA. No vested right 
exists to receive compensation under the EEOICPA, thus claimants must 
be alive to receive the compensation for which they filed a claim. In 
cases where the claimant is deceased, OWCP will pay the eligible 
surviving beneficiaries or their legal guardian, if any. In making 
payment on a claim OWCP will take all necessary and reasonable steps in 
determining the entitlement and identity of the claimant and/or the 
eligible surviving beneficiaries related to a claim for benefits, as 
well as any offset required by section 3641 of the EEOICPA to such an 
amount awarded. OWCP will attempt to ensure that the correct person 
will receive payment in the correct amount by reserving the right to 
conduct any investigation, including requiring any claimant or eligible 
surviving beneficiary to provide or execute an affidavit, record or 
document, or authorize the release of any information deemed necessary 
for purposes of payment. No payment will be processed unless an 
``Acceptance of Payment'' form is signed and returned by the 
beneficiary. Furthermore, any failure by the claimant or eligible 
surviving beneficiary to cooperate with an investigation or provide 
information to OWCP may be deemed a rejection of the payment, unless 
the claimant or eligible surviving beneficiary does not have the legal 
authority to provide, release or authorize access to the requested 
information or documents. Any rejected compensation payment, or shares 
of compensation payment, will not be distributed to the remaining 
eligible surviving beneficiaries, rather, the payment will be returned 
to the Fund. With respect to the ``offset'' provisions within 
Sec. 30.505, OWCP is requiring claimants and eligible surviving 
beneficiaries who receive money awards or settlements based on injuries 
suffered, for which they have also filed a claim under the EEOICPA, to 
declare such amounts received for purposes of subtracting that amount 
from the total award to be paid on the EEOICPA claim. For purposes of 
OWCP's offset calculations, such claims as state workers' compensation 
benefits, life insurance or health insurance contracts will not be 
included in the analysis. The provisions in this section concerning 
multiple payments are set forth to provide notice to claimants and 
survivors that a covered employee's injuries due to any of the 
occupational illnesses recognized under the EEOICPA give rise to only 
one lump-sum payment of monetary compensation per covered employee. 
However, a claimant who is a covered employee and who also qualifies as 
an eligible surviving beneficiary may receive more than one payment; 
similarly, an eligible surviving beneficiary may receive payment or a 
portion of a payment each time he or she qualifies as an eligible 
surviving beneficiary.
Finally, the provisions in Secs. 30.505 and 30.506 regarding 
``beryllium sensitivity'' make clear that no lump-sum monetary 
compensation will be paid for such illness, rather ``monitoring'' will 
be the form of compensation afforded to such covered employees in 
accordance with section 3628(a)(2) of the Act. Monitoring shall consist 
of regular medical examinations and diagnostic testing to determine if 
the covered employee has developed ``established chronic beryllium 
disease.'' Once the individual develops and has diagnosed the 
established chronic beryllium disease, he or she may then submit 
evidence of such diagnosis to OWCP and request appropriate benefits 
under the EEOICPA.

Overpayments

Sections 30.510 through 30.513 detail the process of how OWCP will 
identify and pursue collection of overpayments of compensation for 
purposes of the EEOICPA. These sections have been written to highlight 
and clarify OWCP's

[[Page 28957]]

process to identify, notify, resolve and collect any overpayments made 
to EEOICPA beneficiaries. Specifically, OWCP will notify each recipient 
of any compensation payment by including with each check a narrative 
description indicating the reasons for payment. For those payments sent 
via electronic funds transfer (EFT) clear notification of the date and 
amount of payment will appear on the recipient's bank statement. When 
OWCP initially identifies an overpayment it will notify the recipient 
of its existence and attempt to clarify and resolve the dispute through 
an informal process. Specifically, OWCP will notify the beneficiary of 
the overpayment and allow the beneficiary 30 days to submit comments in 
writing and documentation contesting the overpayment. Upon the end of 
that 30-day period, OWCP will notify the beneficiary of its 
determination of whether a debt is owed to OWCP. If this informal 
process fails to resolve the dispute, OWCP will then advise the 
recipient of its intentions to collect the overpayment using the 
Department's debt collection procedures set forth in 29 CFR part 20. 
Finally, if the Department's own procedures fail to procure the 
repayment of the debt, such overpayment is subject to the provisions of 
the Federal Claims Collection Act of 1996 (as amended) and the debt may 
be referred to the Department of Justice, or a debt collection agency.

Subpart G--Special Provisions

This subpart addresses some additional matters that can arise in 
connection with a claim under the EEOICPA. It contains provisions 
describing representation of claimants before OWCP and also describes 
the subrogation rights the United States has upon payment of 
compensation under the Act, as well as the statutory election of 
remedies for claimants who file tort suits against beryllium vendors or 
atomic weapons employers.

Representation

Section 30.600 notes that while the claims process established by 
this part is informal and non-adversarial, a claimant may appoint one 
individual at a time to represent his or her interests before OWCP. 
Such appointments must be in writing, and OWCP will only recognize one 
individual at a time as the duly appointed representative for the 
claimant. Section 30.601 sets out the legal restrictions on who may 
serve as a representative, and when a federal employee can be appointed 
to act as a claimant's representative. Finally, Sec. 30.602 indicates 
that the claimant is solely responsible for paying any representative's 
fee for services and costs associated with the representation; OWCP is 
in no way liable for any portion of the representative's fee. EEOICPA 
section 3648 limits the attorneys fees that can be charged a claimant 
and provides a $5000 fine for exceeding those limits. Since DOJ is 
responsible for deciding whether to seek the imposition of a fine, the 
Department defers to DOJ's interpretation of the statutory limitation.

Third Party Liability

Section 3642 of the Act provides that upon payment of compensation 
to a claimant, the United States is subrogated to any right or claim 
that the claimant may have on account of his or her injuries, for the 
amount of such payment of compensation. Sections 30.605 through 30.611 
describe the manner in which the United States will exercise this 
statutory authority. These sections require claimants who have received 
EEOICPA benefits to inform OWCP if they receive money or other property 
as a result of a settlement or judgment related to their claims, and 
provide advice regarding the method of valuing structured settlements 
and the amount to which the United States is subrogated. These sections 
also note that a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered by 
the EEOICPA is a recovery that must be reported to OWCP, while payments 
to an employee or eligible surviving beneficiary as a result of an 
insurance policy which the employee or eligible surviving beneficiary 
has purchased is not. They also provide guidance on how the amount paid 
on a single EEOICPA claim is attributed to different conditions for 
purposes of calculating the amount to which the United States is 
subrogated.

Election of Remedy Against Beryllium Vendors and Atomic Weapons 
Employers

Based on the explicit language of section 3645 of the EEOICPA, 
Secs. 30.615 and 30.616 describe the severe limitations on the receipt 
of compensation under the Act that arise when a claimant files a tort 
suit against either a beryllium vendor or an atomic weapons employer. 
Section 30.615 provides that if a claimant filed such a tort suit on or 
prior to October 30, 2000, he or she will not be eligible to receive 
compensation unless the suit is dismissed no later than December 31, 
2003.
Section 30.616 notes that if a claimant files such a tort suit 
after October 30, 2000, he or she will not be eligible to receive 
compensation unless the suit is dismissed no later than April 30, 2003, 
or 30 months after the date the claimant first became aware that his or 
her illness may be connected to the exposure covered by the EEOICPA, 
whichever is later. If a claimant files such a tort suit after the 
later of either April 30, 2003, or 30 months after the date the 
claimant first became aware that his or her illness may be connected to 
the exposure covered by the EEOICPA, he or she also will not be 
entitled to any benefits under subtitle B of the EEOICPA. For both of 
these provisions, ``the date the claimant first became aware'' will be 
deemed to be the date he or she received either a reconstructed dose 
from HHS, or a diagnosis of a covered beryllium illness, as applicable.
Section 30.617 indicates that prior to authorizing any payment 
under Sec. 30.505, OWCP will require the claimant or each surviving 
beneficiary to execute and provide an affidavit showing whether he or 
she complied with the filing and dismissal requirements of Secs. 30.615 
or 30.616, if applicable. This section also authorizes OWCP to require 
the submission of supporting evidence to confirm the particulars of any 
affidavit provided thereunder.

Subpart H--Information for Medical Providers

This subpart contains the information that will be needed by 
medical providers of services and supplies to employees with approved 
claims under the EEOICPA. It also contains the rules for the submission 
of medical bills from providers and employees, and describes the fee 
schedule OWCP will apply to charges for certain medical procedures and 
services. The process described in this subpart is similar to that used 
by medical providers submitting bills for services provided to 
claimants under other federal programs, including the FECA program 
administered by OWCP.

Medical Records and Bills

Section 30.701 sets out the process medical providers must follow 
when they submit bills for medical and surgical treatment, appliances 
or supplies furnished to employees, except for treatment and supplies 
provided by nursing homes. The provider must itemize the charges on the 
standard Health Insurance Claim Form, HCFA 1500 or OWCP 1500 (for 
professional charges), the UB-92 (for hospitals), or the Universal 
Claim Form (for pharmacies), identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the

[[Page 28958]]

Health Care Financing Administration Common Procedure Coding System 
(HCPCS) code, the National Drug Code (NDC), or the Revenue Center Code 
(RCC), and state each diagnosed condition and furnish the corresponding 
diagnostic code using the ``International Classification of Disease, 
9th Edition, Clinical Modification'' (ICD-9-CM).
Hospitals must submit charges for medical and surgical treatment or 
supplies on the UB-92 and identify each outpatient radiology service, 
outpatient pathology service and physical therapy service performed 
using HCPCS/CPT codes with a brief narrative description. Other 
outpatient hospital services for which HCPCS/CPT codes exist must also 
be coded individually using the coding scheme noted in Sec. 30.701. 
Services for which there are no HCPCS/CPT codes available may be 
identified using the RCCs described in the current edition of the 
``National Uniform Billing Data Elements Specifications.'' The hospital 
must also furnish the diagnostic code using the ICD-9-CM, and if 
outpatient hospital services include surgical and/or invasive 
procedures, the hospital must code each procedure using the proper CPT/
HCPCS codes and furnishing the corresponding diagnostic codes using the 
ICD-9-CM.
Pharmacies must itemize charges for prescription medications, 
appliances, or supplies on the Universal Claim Form. 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. Nursing homes must itemize charges for appliances, supplies or 
services on the provider's billhead stationery.
Section 30.701(d) expressly indicates that by submitting a bill 
and/or accepting payment, the provider signifies that the service for 
which payment is sought was performed as described and was necessary. 
The provider also agrees to comply with the provisions of subpart H 
that address 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.
Section 30.702 describes the similar process to be followed by 
employees seeking reimbursement. If an employee has paid bills for 
medical, surgical or other services, supplies or appliances due to an 
accepted occupational illness, he or she should submit an itemized bill 
on the HCFA 1500 or OWCP 1500. The provider of such service must list 
each diagnosed condition and furnish the applicable ICD-9-CM code, and 
identify each service performed using the applicable HCPCS/CPT code. 
The bill must be accompanied by evidence that the employee paid the 
provider for the service and a statement of the amount paid. Copies of 
bills will not be accepted for reimbursement unless they bear the 
original signature of the provider, with evidence of payment.
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 that it is his or her responsibility to ask 
the provider to refund the amount paid that exceeds the maximum 
allowable charge. If the provider does not comply with this request 
within 60 days, OWCP will begin the process of excluding the provider 
from further participation in the program. OWCP also has the discretion 
to authorize reimbursement to the employee for the excess amount.
The time limitation that will apply to payment of medical bills 
submitted by both providers and employees is described in Sec. 30.703. 
This section provides that no bill will be paid if it 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 employee's claim 
was first accepted as compensable by OWCP, whichever is later.

Medical Fee Schedule

Sections 30.705 through 30.710 describe the cost containment 
methods that will be used when payment is made for medical and other 
health services furnished by physicians, hospitals and other providers. 
These methods will not be applied to charges for non-medical services 
provided in nursing homes, or 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.
For professional medical services, OWCP will maintain a schedule of 
maximum allowable fees for procedures performed in a given locality. 
The fee schedule consists of an assignment of a value to procedures 
identified by HCPCS/CPT code representing the relative skill, effort, 
risk and time required to perform the procedure, 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. Generally, payment for a listed procedure will 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. However, 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 and instead make individual 
determinations of the amount to be paid. OWCP may also set fees without 
regard to schedule limits for specially authorized consultant 
examinations, directed medical examinations, and other specially 
authorized services.
Payment for medicinal drugs prescribed by physicians may not exceed 
the amount derived by multiplying the average wholesale price of the 
medication by the quantity or amount provided, plus a dispensing fee. 
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. Payment for 
inpatient medical services will be made using condition-specific rates 
based on the Prospective Payment System devised by HCFA (42 CFR parts 
412, 413, 424, 485, and 489). Using this system, payment is derived by 
multiplying the diagnosis-related group weight assigned to the hospital 
discharge by the provider-specific factors.
Sections 30.711 through 30.713 describe the process that will be 
followed when a fee for a billed procedure or cost is reduced, and what 
the medical provider can do following such a reduction. If the charge 
submitted exceeds the maximum amount according to the schedule, payment 
will be made in the amount allowed by the schedule for that service and 
the provider will be notified that payment was reduced in accordance 
with the schedule. The provider will have 30 days to request 
reconsideration of the fee determination by the district office with 
jurisdiction over the employee's claim. OWCP will only reevaluate the 
paid amount if the request is accompanied by evidence showing that the 
code incorrectly identified the procedure, that the presence of a 
severe or concomitant medical condition made treatment

[[Page 28959]]

especially difficult, or that the provider possessed unusual 
qualifications (board certification in a specialty is not sufficient 
evidence of unusual qualifications). Within 30 days of receiving the 
request, the district office will respond stating whether or not an 
additional amount will be allowed. If the district office continues to 
disallow the contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office 
within 30 days. Within 60 days of an application, the Regional Director 
will issue a decision whether or not an additional amount will be 
allowed. A provider whose fee is partially paid may not request 
reimbursement from the employee for additional amounts.

Exclusion of Providers

Sections 30.715 through 30.726 describe the procedures OWCP will 
use to exclude providers from payment under this subpart to protect the 
EEOICPA program from fraud and abuse. After completing such inquiry he 
or she deems appropriate, the Regional Director may initiate the 
process of excluding the provider from participation in the EEOICPA 
program. The Regional Director begins the process by sending the 
provider a letter, by certified mail and with return receipt requested, 
containing a statement of the grounds upon which exclusion will be 
based, a summary of the information the Regional Director relied on in 
reaching an initial decision that exclusion proceedings should begin, 
an invitation to the provider to either resign voluntarily from 
participation in the EEOICPA program or to request a decision on 
exclusion, a notice of the provider's right to request a formal hearing 
before an administrative law judge, and a notice that if the provider 
fails to answer the letter of intent within 30 days, the Regional 
Director may deem the allegations it contains to be true and may order 
exclusion of the provider without conducting any further proceedings. 
If the provider submits an answer, the Regional Director will issue a 
written decision and will send a copy of the decision to the provider 
by certified mail, return receipt requested. The decision will advise 
the provider of his or her right to request, within 30 days of the date 
of the decision, a formal hearing before an administrative law judge.
Any request for a hearing must identify the issues to be addressed 
and must include any request for a more definite statement by OWCP, any 
request for the presentation of oral argument or evidence, and 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. The Chief Administrative Law 
Judge of the Department of Labor will assign the matter for an 
expedited hearing, and the administrative law judge assigned to the 
matter will 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. To the extent appropriate, proceedings before 
the administrative law judge will be governed by 29 CFR part 18. At the 
conclusion of the hearing, the administrative law judge will issue a 
written decision and serve it on all parties to the proceeding, their 
representatives and OWCP. An aggrieved party may, within 30 days of the 
issuance of such decision, file a petition for discretionary review 
with the Director for Energy Employees Occupational Illness 
Compensation on one or more of the following grounds: a finding or 
conclusion of material fact is not supported by substantial evidence; a 
necessary legal conclusion is erroneous; the decision is contrary to 
law or to the duly promulgated rules or decisions of OWCP; a 
substantial question of law, policy, or discretion is involved; or a 
prejudicial error of procedure was committed. If a petition is granted, 
review will be limited to the questions raised by the petition, and a 
petition not granted within 20 days after receipt of the petition is 
deemed denied.
After completing the exclusion process, OWCP will notify all 
district offices, the HCFA, and 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. However, 
OWCP will not refuse to reimburse an employee for otherwise 
reimbursable medical treatment, services or supplies if they were 
rendered in an emergency, or if the employee could not reasonably have 
been expected to have known of the exclusion. When an employee is 
notified that his or her attending physician has been excluded, OWCP 
will provide the employee with an opportunity to select a new attending 
physician. An excluded provider may apply for reinstatement one year 
after the exclusion, unless the order provides for a shorter period. An 
application for reinstatement must be addressed to the Director for 
Energy Employees Occupational Illness Compensation, and contain a 
statement of the basis for the application. The Director for Energy 
Employees Occupational Illness Compensation will only order 
reinstatement where 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 will have to provide 
reasonable assurances that the basis for the exclusion will not be 
repeated.

V. Statutory Authority

Section 3611 of the Energy Employees Occupational Illness 
Compensation Program Act provides the general statutory authority, 
which Executive Order 13179 allocates to the Secretary, to prescribe 
rules and regulations necessary for the administration and enforcement 
of the Act. Sections 3629 and 3630 provide specific authority regarding 
medical treatment and care, including determining the appropriateness 
of charges. The Debt Collection Act of 1982, as amended, authorizes 
imposition of interest charges and collection of debts by withholding 
funds due the debtor.

VI. Executive Order 12866

This rule is being treated as a ``significant regulatory action,'' 
within the meaning of Executive Order 12866, because it is economically 
significant, as defined in section 3(f)(1) of E.O. 12866. 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 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.
Based upon the factors and assumptions set forth below, DOL's 
estimate of the aggregate cost of benefits and administrative expenses 
of this regulatory action implementing the EEOICPA is, in millions of 
dollars (estimates for FY2003, FY2004 and FY2005 are preliminary and 
will be reviewed during the budget formulation process):

[[Page 28960]]



----------------------------------------------------------------------------------------------------------------
FY2001 FY2002 FY2003 FY2004 FY2005
----------------------------------------------------------------------------------------------------------------
Admin......................................................... $50 $136 $100 $55 $50
Benefits...................................................... 358 597 477 253 222
----------------------------------------------------------------------------------------------------------------

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 relatively easily determined. These benefit 
estimates further reflect contemplated medical costs of $1500 per year 
for 90% of the covered claimants, while the remaining 10% incur 
$125,000 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 $3000 per year for beryllium sensitivity, $4000 per 
year for mild chronic beryllium disease, and $9000 per year for more 
severe chronic beryllium disease. Benefit estimates for silicosis are 
based upon figures obtained from DOE concerning the number of exposed 
employees and the expected incidence of silicosis, and medical costs of 
$4000 per year. Benefit estimates for the claims based upon receipt of 
an award by uranium employees pursuant to Sec. 5 of the Radiation 
Exposure Compensation Act are based on figures for the number of claims 
provided by DOJ, and $4000 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 the 
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. 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 the statutory terms, those choices have no 
significant impact on the cost of this regulatory action. Such policy 
choices may affect who is entitled to receive benefits (as in the case 
of potential survivors), but will not have a significant impact on the 
number of eligible recipients or the level of benefits to which they 
are entitled.
OMB has reviewed the rule for consistency with the President's 
priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department 
will report to Congress promulgation of this rule prior to its 
effective date. The report will state that the Department has concluded 
that this rule is a ``major rule'' because it will likely result in an 
annual effect on the economy of $100 million or more.

VIII. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' For purposes of the 
Unfunded Mandates Reform Act, this rule does not include any Federal 
mandate that may result in increased annual expenditures in excess of 
$100 million by State, local or tribal governments in the aggregate, or 
by the private sector.

IX. Regulatory Flexibility Act

The Department believes that this interim final rule will have ``no 
significant economic impact upon a substantial number of small 
entities'' within the meaning of the RFA. 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 be 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 methodologies used for the first two 
of these provisions are explained in the text of the preamble to this 
interim final rule, which essentially adopts 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 the Government and providers. The 
Government will benefit because OWCP did not 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 they are already 
familiar and have existing systems in place for billing--they will not 
have to incur unnecessary administrative costs to learn a new process 
because the EEOICPA bill process 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

[[Page 28961]]

private insurers. By adopting the uniform billing statement and a 
familiar cost control methodology, OWCP has kept close to the billing 
environment with which pharmacies are already familiar. The methods 
chosen, therefore, represent systems familiar to the providers. The 
third of these three provisions will not have an effect on a 
substantial number of ``small entities'' under SBA 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 23,201 claims the Department estimates it will 
accept over the next five years, only about 14,000 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)

This regulation has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform 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 regulation 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 13132 (Federalism)

The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

XII. Executive Order 13045 (Protection of Children From 
Environmental, Health Risks and Safety Risks)

In accordance with Executive Order 13045, OWCP has evaluated the 
environmental health and safety effects of this rule on children. The 
agency has determined that the final rule will have no effect on 
children.

XIII. Submission to Congress and the General Accounting Office

In accordance with the Small Business Regulatory Enforcement 
Fairness Act, the Department will submit to each House of the Congress 
and to the Comptroller General a report regarding the issuance of this 
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).

XIV. Catalog of Federal Domestic Assistance Number

This program is not listed in the Catalog of Federal Domestic 
Assistance.

List of Subjects

20 CFR Part 1

Administrative practice and procedure, Claims, Government 
Employees, Labor, Workers' Compensation.

20 CFR Part 30

Administrative practice and procedure, Cancer, 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, 8149 (Reorganization Plan No. 6 
of 1950, 15 FR 3174, 64 Stat. 1263); 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 Deputy 
Assistant Secretary for Workers' Compensation Programs who, under the 
general supervision of the Assistant Secretary, administers the 
programs assigned to that Office by the Assistant Secretary.

[[Page 28962]]

Sec. 1.2 What functions are assigned to OWCP?

The Assistant Secretary has delegated authority and assigned 
responsibility to the Deputy Assistant Secretary for Workers' 
Compensation Programs 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, Title XXXVI of the Floyd D. Spence National Defense Authorization 
Act for Fiscal Year 2001, Pub. L. 106-398 (114 Stat. 1654, 1654A-1231), 
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 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.


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' Com